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[ { "docid": "22727965", "title": "", "text": "Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it was said that a complaint, especially a pro se complaint, should not be dismissed summarily 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,’ ” quoting from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Our own decisions reflect these views. In Burris v. State Department of Public Welfare of S. C., 491 F.2d 762 (4 Cir. 1974), we held that when plaintiff sued the South Carolina Department of Public Welfare alleging that his application for welfare was denied without a hearing but failing to allege a jurisdictional amount or other basis for federal jurisdiction, the district court should have apprised his counsel of the availability of 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). We also recognized that the named defendant was probably not a “person” within the meaning of § 1983, but we directed the district court to consider the case on its merits “assuming that the complaint is amended to come within these statutes.” 491 F.2d at 763. To like effect is Johnson v. Mueller, 415 F.2d 354 (4 Cir. 1969). In Roseboro v. Garrison, 528 F.2d 309 (4 Cir. 1975), we held that a district court must advise a pro se litigant of his right under the summary judgment rule to file opposing affidavits to defeat a defendant’s motion for summary judgment. The conclusions to be drawn from these decisions of the Supreme Court and our own, especially Burris, were well stated by the district court in Canty v. City of Richmond, Va., Police Dept., 383 F.Supp. 1396 (E.D.Va.1974), affirmed, 526 F.2d 587 (4 Cir. 1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 802, 46 L.Ed.2d 654 (1976): [T]he Fourth Circuit takes the position that its district courts must be especially solicitous of civil rights plaintiffs. This solicitude for a civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appears pro se. In the great" } ]

[ { "docid": "14035005", "title": "", "text": "positions within the corporation. After being pressured, Peterson refused to discuss the situation further. On or about July 5,1995, the Leather Shop terminated Manns with no written or articulated reason. Manns filed charges with the Equal Employment Opportunity Commission at the Department of Labor and received a ‘Right to Sue Letter’ dated June 5, 1996. Manns instituted an action against Peterson in her individual capacity, and the Leather Shop, alleging employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, (Count I), Defamation (Count II), Injurious Falsehood (Count III), and Intentional Infliction of Emotional Distress (Count IV). This Court will grant the defendants’ motion to dismiss for the reasons that follow. Thus the only remaining count will be the employment discrimination count against the Leather Shop (Count I). II. DISCUSSION A. Standards on Motion to Dismiss The court cannot dismiss an action under Federal Rules of Civil Procedure 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims as pled which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The factual allegations raised in the complaint must be assumed to be true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). The complaint should be construed liberally in the plaintiffs favor, giving that party the benefit of all fair inferences which may be drawn from the allegations. Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir.1989). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must view all factual allegations in the complaint as true and must construe the complaint liberally. Francis v. Graham Miller (Caribbean) Ltd., 26 V.I. 184 (Terr.Ct.1991). Since a motion" }, { "docid": "16686479", "title": "", "text": "State Court Judge of the 19th Judicial District Court of East Baton Rouge Parish run by divisions — 13 in all — designated “A” through “M”. Each candidate selects one division in which to run, each voter in the Parish votes for a candidate for each division, and each Judge elected for a division serves the entire 19th Judicial District. No black person has ever been elected to the Baton Rouge City Court or to the 19th Judicial District Court of East Baton Rouge Parish. And according to the 1970 U.S. Census, black citizens make up well over 25% of the population of the City of Baton Rouge and East Baton Rouge Parish. Most of the black citizens are concentrated in a small number of geographical areas of the City and Parish. II. It is well-established that a complaint should not be dismissed under F.R. Civ.P. 12(b)(6) for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). See also Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263, 268 (1972); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652, 654 (1972). And for purposes of a motion to dismiss, material allegations of the complaint are taken as admitted, Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404, 416 (1969), and the complaint is to be liberally construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974). Because of these principles, “dismissal of a claim on the basis of the barebone pleadings is a precarious one with a high mortality rate.” Barber v. M/V “Blue Cat”, 372 F.2d 626, 627, 1969 A.M.C. 211, 212 (5th Cir. 1967). In this case, the District Court dismissed the complaints on the ground that the “one man one vote” principle does" }, { "docid": "15440010", "title": "", "text": "essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage they think may exist actually does. Lessman v. McCormick, 591 F.2d 605, 611 (10th Cir. 1979). Even more importantly, this nondiscrimi-nating approach has been adopted by the Supreme Court in its analysis of civil rights complaints. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), involved a suit challenging the constitutionality of a Louisiana labor statute and of certain actions taken by state officials administering the statute. While discussing an important standing allegation, Mr. Justice Marshall wrote: For the purposes of a motion to dismiss, the materia] allegations of the complaint are taken as admitted. See, e.g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-349, 15 L.Ed.2d 247 (1965). And, the complaint is to be liberally construed in favor of plaintiff. See Fed.Rules Civ.Proc. 8(f); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint should not be dismissed unless it appears that appellant could “prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, supra, at 45-46, 78 S.Ct. at 102. Id. at 421-22, 89 S.Ct. at 1849. Accord Scheuer v. Rhodes, supra; Haines v. Ker-ner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) (allegations of pro se civil rights complaint tested by pleading standard articulated in Conley). Thus, in civil rights cases as in other civil matters, all that is required of a complainant’s pleadings under Rule 8(a)(2) is sufficient specificity to give notice of the claim to the opposing party. It hardly can be disputed that the allegations of the complaint in this case provided defendants with the requisite notice of “what the plaintiff[s]’ claim is and the grounds upon which it rests.” Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103. Defendants could not help but learn from the complaint that" }, { "docid": "9686909", "title": "", "text": "Freeburn has now submitted additional evidence to support his argument that he did not tell the gun tower officer to shoot plaintiff. III. Standard of Review A. Dismissal pursuant to Fed.R.Civ.P. 12(b)(6) In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court must accept all well-pleaded allegations as true and construe them in the light most favorable to plaintiff. Zinermon v. Burch, 494 U.S. 113, 117, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 304 (2d ed.1990). See also Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). A complaint will not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). It is also well established, however, that eonclusory, unsupported allegations of constitutional deprivation do not state a claim. Finally, a court may decide a motion to dismiss only on the basis of the pleadings. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir.1993). Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a claim. See Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-90 (6th Cir.1990). The court may treat the motion to dismiss as one for summary judgment, however, if “matters outside the pleading are presented to and not excluded by the court.” Fed.R.Civ.P. 12(b). B. Summary judgment Under Fed.R.Civ.P. 56, summary judgment is to be entered if the moving party demonstrates there is no genuine issue as to any material fact. The Supreme Court has interpreted this to mean that summary judgment should be entered if the evidence is such that a reasonable jury could" }, { "docid": "11216563", "title": "", "text": "to file untimely, the defendant filed its reply. II. Discussion In considering a motion to dismiss, “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 [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Edüd 80 (1957); Kenneda v. United States, 880 F.2d 1439, 1442 (D.C.Cir.1989). The factual allegations of the complaint are assumed to be true and are construed liberally in favor of the plaintiff. Zoelsch, 824 F.2d at 33; see also 5A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1357, at 304 (1990). The plaintiff is entitled to all favorable inferences, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994), and the pro se complaint will be construed liberally. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). In its motion to dismiss, the defendant makes five arguments: (1) that the common law claims must be dismissed because Williams failed to comply with the notice requirements of D.C.Code § 12-309; (2) that, alternatively, the assault and battery claims must be dismissed because of her failure to file before the expiration of the statute of limitations; (3) that the Section 1983 claim must be dismissed because Williams cannot demonstrate an affirmative nexus between a custom, policy or practice of the District of Columbia and the constitutional violations alleged; (4) that the Title VII claim must be dismissed, because same-sex sexual harassment is not actionable under Title VII; and, finally, (5) that even if the common claims are not dismissed on the grounds proposed above, they must be dismissed in the absence of a valid federal claim. See Defendant District of Columbia’s Motion to Dismiss Plaintiff’s Complaint or, in the Alternative, For Summary Judgment (“Motion to Dismiss”), passim. The common law claims, the Section 1983 claim and the Title VII claim will be addressed" }, { "docid": "5793069", "title": "", "text": "Plaintiffs’ Fifth Amendment substantive and procedural due process rights. Finally, in Count IV of their Amended Complaint, Plaintiffs claim that the IRS violated the Privacy Act by not making a proper factual record of Plaintiffs’ tax information and by failing to maintain proper tax records. In Count IV, Plaintiffs also allege that the IRS improperly disclosed information about Plaintiffs’ tax case to BNA. Plaintiffs allege that BNA used that improperly disclosed information in its articles about Plaintiffs’ tax case. II. STANDARD OF REVIEW Defendants move to dismiss Plaintiffs’ Amended Complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim upon which relief can be granted. The purpose of a motion under Rule 12(b)(6) is to test the sufficiency of the complaint. When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of facts sufficient to malee a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See generally Rauch v. Day & Night Mfg., 576 F.2d 697, 702 (6th Cir.1978); Ott v. Midland-Ross Corp., 523 F.2d at 1367, 1369 (6th Cir.1975); Brennan v. Rhodes, 423 F.2d 706 (6th Cir.1970). In this case, Plaintiffs are proceeding pro se. A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A court should make a reasonable attempt to read the pleadings to state a valid claim on which the plaintiff" }, { "docid": "13266387", "title": "", "text": "law fraud. A. The Basic Standards For Assessing Motions To Dismiss Under Rule 12(b)(6) In considering a motion to dismiss a complaint for “fail[ing] to state a claim upon which relief can be granted,” a court must construe the complaint in the light most favorable to the plaintiffs, read the complaint as a whole, and take the facts asserted therein as true. Fed.R.Civ.P. 12(b)(6); see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); In re MicroStrategy, Inc. Securities Litigation, 115 F.Supp.2d 620, 627-28 (E.D.Va.2000); Higgins v. Medical College, 849 F.Supp. 1113, 1117 (E.D.Va.1994). All reasonable inferences must be made in favor of the nonmoving party, and “a count should be dismissed only where it appears beyond a reasonable doubt that recovery would be impossible under any set of facts which could be proven.” America Online, Inc. v. GreatDeals.Net, 49 F.Supp.2d 851, 854 (E.D.Va.1999) (citing Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992)); see MicroStrategy, 115 F.Supp.2d at 627-28; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). A motion to dismiss tests only “the sufficiency of the complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses,” Republican Party, 980 F.2d at 952, and a motion to dismiss should not be granted unless the court “could not grant relief under any set of facts that the plaintiff could prove consistent with his allegations in the complaint,” Carter Machinery Co., Inc. v. Gonzalez, No. 97-0332-R, 1998 WL 1281295, at *2 (W.D.Va.1998) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). See also MicroStrategy, 115 F.Supp.2d at 627-28. Although, as explained below, the PSLRA affects how certain constituent elements of a securities fraud claim are to be measured, nothing in the PSLRA alters these basic precepts for applying Rule 12(b)(6). B. Failure To State A claim Under Section 10(b) and 10(b)(5) The basis for Plaintiffs’ statutory fraud claim is Section 10(b) of the 1934 Act, which" }, { "docid": "1704486", "title": "", "text": "and the Reform Act. For the reasons that follow, the Court grants Defendant Terra Nitrogen’s motion to dismiss this cause for failure to sufficiently state a claim for relief. I In considering a motion to dismiss, whether on grounds of lack jurisdiction over the subject matter or for failure to state a cause of action, the Court accepts all factual allegations as true and construes the allegations in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also U.S. ex rel. McKenzie v. Bellsouth Telecommunications, Inc., 123 F.3d 935 (6th Cir.1997), cert. denied, — U.S. —, — U.S. —, 118 S.Ct. 855, 139 L.Ed.2d 755 (1998); In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1675, 140 L.Ed.2d 813 (1998). A court properly grants a motion to dismiss only if it appears that the plaintiff can prove no set of facts that would entitle her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Furthermore, when considering a motion to dismiss for lack of subject matter, courts may look beyond the jurisdictional allegations in the complaint and may consider whatever evidence the parties submit. Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence, 105 F.3d 1078, 1081 (6th Cir.1997), vacated on other grounds, — U.S. —, 118 S.Ct. 1558, 140 L.Ed.2d 790 (1998). Here, Plaintiffs Gupta bring this cause pro se. Although the above standards for dismissal still apply, it is well-settled that “pro se complaints and other documents, ‘however inartfully pleaded,’ are held to ‘less stringent standards than formal pleadings [and documents] drafted by lawyers,’ and are to be liberally construed.” Perreault v. Hostetler, 884 F.2d 267 (6th Cir.1989) (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, this does not mean that pro se plaintiffs are “automatically entitled to" }, { "docid": "5123038", "title": "", "text": "While Telcor has stated that it intends for this court to construe its motion to dismiss as a motion to compel arbitration, Oncor has ex pressed no such intention, insisting that it does not belong in this lawsuit. I turn now to the question whether Oncor is bound to the terms of this Contract and the arbitration clause. “When there is a dispute as to the scope of the arbitration agreement, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator, ‘[u]nless the parties clearly and unmistakably provide otherwise.’ ” Summer Rain v. Donning Company/Publishers, Inc., 964 F.2d 1455, 1459 (4th Cir.1992) (alteration in original) (quoting AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418). Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint for failure to state a claim upon which relief can be granted. The purpose of this rule is to test the legal sufficiency of the claim. On a motion to dismiss, the court must view the allegations in the complaint in the light most favorable to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Specifically, the court must accept the allegations contained in the complaint as true, and must liberally construe the complaint as a whole. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Finlator v. Powers, 902 F.2d 1158, 1160 (4th Cir.1990). A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Faulkner Advertising Assoc. v. Nissan Motor Corp, 905 F.2d 769, 771-72 (4th Cir.1990). Alamria alleges that Oncor is not entitled to dismissal of its claim that Oncor is directly liable for breach of the Contract because it has been bound under the Contract with Telcor under Article 20. This provision of the Contract reads, in full:" }, { "docid": "12882926", "title": "", "text": "¶ 73.) On June 18, 2001, three days after their responsive pleading was due, Defendants filed the instant motion to dismiss and Plaintiff thereafter filed a memorandum in opposition. In addition, Plaintiff moved to “dismiss” or “default” Defendants because their motion to dismiss was filed three days late. Plaintiff then moved for an award of sentence-reduction credits. He recently informed the court that he is no longer in state custody but, rather, residing independently in West Springfield. (See Docket No. 29.) III. Standards Of Review A defendant’s motion to dismiss must focus not on “whether [the] plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Pursuant to Rule 12(b)(6), the court may grant dismissal only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accord Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987). Under Rule 12(b)(1), the plaintiff, the party invoking jurisdiction, has the burden of proof to establish its existence. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). In either case, the court must take as true the well-pleaded facts as they appear in the complaint, extending the plaintiff every reasonable inference in his favor. See Kiely, 105 F.3d at 735; Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Finally, as applicable here, a court must take special care when viewing a pro se litigant’s complaint which, “however inartfully pleaded,” is held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). IV. Defendants’ Motion To Dismiss Defendants’ motion to dismiss tracks the three statutes alleged to have been" }, { "docid": "11311732", "title": "", "text": "the defendant’s motion and seeks to dismiss the counterclaim. In the alternative, the .plaintiff moves for summary judgment in. accordance with Rule 12(b) if the court relies upon matters outside of the complaint. With respect to the motion to dismiss the counterclaim, on December 14, 1987 defendant filed its answer and filed a counterclaim. The gist of the counterclaim is that, the attachment of M/V POMEROL under Admiralty Rules B and C was unjustified under the facts of this case and law germane to it. There is a general assertion that damages approximated $22,000.00 per djay while the vessel was under attachment, $88,000 costs for .the bond and consequential damages amounting to $50,000. A motion to dismiss is one of limited inquiry. The standard for granting a motion to dismiss is not the likelihood of success on the merits, but whether the plaintiff is entitled to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed unless it appears that appellant could “prove no set of facts in support of his claim which would entitle him to relief.” Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). The material facts alleged in the complaint are to be construed in the light most favorable to the non-moving party, and taken as admitted with dismissal ordered only if the non-moving party is not entitled to relief under any set of facts they could prove. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969) reh’g. denied 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976). Upon review of a complaint before receipt of any evidence, the issue is not whether the non-moving party will ultimately prevail or is likely to prevail, but is whether the non-moving party is entitled to offer evidence to support the claims. Scheuer v." }, { "docid": "11232175", "title": "", "text": "234 (1982). Therefore, I will treat APS’ entire motion as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Harris initially brought this action pro se. Generally, pro se complaints are held ‘“to less stringent standards than formal pleadings drafted by lawyers.’ ” Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989), quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In addition, when considering a defendant’s motion to dismiss, a court must accept the plaintiffs allegations as true and resolve competing inferences in his favor. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The burden on the defendant in a motion to dismiss is onerous. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). “When determining the sufficiency of [a plaintiffs] claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiff’s] ... complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff’s] possession or of which [plaintiff] had knowledge and relied on in bringing suit.” Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993). B. Failure to File EEOC Charge: Disability, Race, Retaliation and Sexual Harassment Claims 1. Race and disability discrimination APS claims that Harris has failed to exhaust his administrative remedies with respect to his race and disability claims because he did not raise the claims in his charge filed with the EEOC. “A district court only has jurisdiction to hear Title VII claims that" }, { "docid": "2613952", "title": "", "text": "raised by Defendants’ motions are each considered in the following order. First considered are the respective motions of the MieroStrategy Defendants and PwC to dismiss Plaintiffs’ Section 10(b) and Rule 10b-5 claims for failure to meet the heightened scienter pleading requirements of the PSLRA, followed by the MieroStrategy Defendants’ materiality argument for dismissal. Next is the motion to dismiss Count II of the Complaint for failure to state a claim for control group liability under Section 20(a) of the Exchange Act. Finally taken up is the motion to dismiss Count III of the Complaint for failure to state a claim for secondary insider trading liability under Section 20A of the Exchange Act. . II. Applicable Rules and Principles A. Motions to Dismiss In considering a motion to dismiss a complaint for “failing] to state a claim upon which relief can be granted,” a court must construe the complaint in the light most favorable to the plaintiffs, read the complaint as a whole, and take the facts asserted therein as true. Fed.R.Civ.P. 12(b)(6); see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Higgins v. Medical College, 849 F.Supp. 1113, 1117 (E.D.Va.1994). All reasonable inferences must be made in favor of the nonmoving party, and “a count should be dismissed only where it appears beyond a reasonable doubt that recovery would be impossible under any set of facts which could be proven.” America Online, Inc. v. GreatDeals.Net, 49 F.Supp.2d 851, 854 (E.D.Va.1999) (citing Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992)); see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss tests only “the sufficiency of the complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses,” Republican Party, 980 F.2d at 952, and a motion to dismiss should not be- granted unless the court “could not grant relief under any set of facts that the plaintiff could prove consistent with his allegations in fhe complaint,” Carter Machinery Co., Inc., v. Gonzalez, No." }, { "docid": "15502173", "title": "", "text": "failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of [the subject] claim.” McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 328 (4th Cir.1996) (en banc), citing Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989); and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969). Accord Republican Party of NC, 980 F.2d at 952 (“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’) (internal citation omitted). In considering a Rule 12(b)(6) motion, the complaint must be construed in the light most favorable to the plaintiff, assuming its factual allegations to be true. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993); Martin Marietta v. Int'l Tel. Satellite, 991 F.2d 94, 97 (4th Cir.1992); and Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir.1989). This is particularly true of a motion to dismiss a complaint filed by a pro se plaintiff. Haines, 404 U.S. at 520, 92 S.Ct. 594 (instructing court to “[c]onstru[e] [a pro se ] petitioner’s inartful pleading liberally”); Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551, (1982). In applying Haines, the Fourth Circuit Court of Appeals has stated: [The Court] takes the position that its district courts must be especially solicitous of civil rights plaintiffs. This solicitude for a civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appears pro se. In the great run of pro se cases, the issues are faintly articulated and often only dimly perceived. There is, therefore, a greater burden and a correlative greater responsibility upon the district court" }, { "docid": "16684473", "title": "", "text": "punitive damages. In light of the liberality given to motions to amend under the Rules of Civil Procedure, the undersigned will grant the Plaintiffs Motion for Leave to Amend Complaint and will consider the Amended Complaint, attached to Plaintiffs motion, in determining the Defendant’s Motion to Dismiss. II. DISCUSSION A. Standard of Review “A motion to dismiss under [Fed. R.Civ.P. 12(b)(6) ] tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.), cert. denied, 510 U.S. 828, 114 S.Ct. 93, 126 L.Ed.2d 60 (1993), citing 5A C. Wright & A. Miller, Fed. Practice and Procedure § 1356 (1990). “A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of [the subject] claim.” McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 328 (4th Cir.1996)(en banc), citing Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989); and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969). Accord Republican Party of NC, 980 F.2d at 952 (“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’) (internal citation omitted). In considering a Rule 12(b)(6) motion, the complaint must be construed in the light most favorable to the nonmoving party, assuming factual allegations to be true. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993); Martin Marietta v. Int’l Tel. Satellite, 991 F.2d 94, 97 (4th Cir.1992); and Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir.1989). B. Plaintiff’s" }, { "docid": "19700369", "title": "", "text": "Rule 12(b)(6) tests the legal sufficiency of the complaint. Yet, it is well established that the “complaint should not be dismissed 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.’ ” McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232 [100 S.Ct. 502, 62 L.Ed.2d 441] (1980), citing Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-102, 2 L.Ed.2d 80] (1957). See Tahir Erk v. Glenn L. Martin Co., 116 F.2d 865, 870 (4th Cir. 1941). In ruling on a motion to dismiss, the court must consider as true all of the properly pleaded allegations contained in the complaint. Jenkins v. McKeithen, 395 U.S. 411, 421-22 [89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404] (1969). Moreover, the allegations will be construed liberally in favor of the pleader, Scheuer v. Rhodes, 416 U.S. 232, 236 [94 S.Ct. 1683, 1686, 40 L.Ed.2d 90] (1974), and the court must disregard the contrary allegations of the opposing party. A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). (unofficial citations omitted). This Court will consider as true all properly pleaded allegations contained in the complaint, and all allegations will be construed liberally in favor of the pleader. Hall v. Board of County Comr’s of Frederick County, 509 F.Supp. 841, 846-47 (D.Md. 1981); Greene v. Johns Hopkins Univ., 469 F.Supp. 187, 189 (D.Md.1979); Midway Enterprises v. Petroleum Marketing Corp., 375 F.Supp. 1339, 1340 (D.Md.1974). In Caddell v. Singer, 652 F.2d 393, 394 (4th Cir.1981), the Fourth Circuit, in reversing a dismissal under Rule 12(b)(6), characterized the heavy burden facing the movant who seeks dismissal of an action for failure to state a claim upon which relief can be granted: “We are unable to say that the complaint, if read in the light most favorable to the complainant with every doubt resolved in his behalf, fails to state any valid claim for relief.” III. The Alleged Misrepresentations Fail to State a Claim Under Section 10(b) or Rule 10b-5 Defendants’ motion to dismiss contends that" }, { "docid": "14927704", "title": "", "text": "support of his claim that the Corporation Counsel has sent him threatening and harassing letters. The dates and contents of the letters are not specified. See Am. Compl. ¶ 33. The City defendants now move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). These defendants assert that dismissal is warranted because plaintiffs claims are either time-barred or fail to state viable claims against them. Discussion A. Standard of Review A court may grant a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A court must take as true all the facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); DeJesus v. Sears, Roe buck & Co., Inc., 87 F.3d 65, 69 (2d Cir.1996). Moreover, pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers,” and are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir.1997). Nevertheless, to survive a Rule 12(b)(6) motion, a civil rights complaint must contain “more than naked improbable unsubstantiated assertions without any specifics.” Neustein v. Orbach, 732 F.Supp. 333, 346 (E.D.N.Y.1990). Similarly, a complaint asserting “only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.1993) (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983)) (per curiam). Plaintiffs amended complaint does not specifically enumerate causes of action. Rather, plaintiff alludes to a large number of constitutional provisions, statutes and common law claims. However, plaintiffs primary allegations appear to be that he was falsely arrested, subjected to excessive force, and maliciously prosecuted. For the" }, { "docid": "19666297", "title": "", "text": "that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80(1957)). A motion under Rule 12(b)(6) does not test a plaintiffs likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The factual allegations of the complaint are presumed to be true and are construed liberally in plaintiffs favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2000). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a plaintiff must offer “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment] to relief.” Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1964-65. The Court liberally construes a pro se complaint. “[H]owever inartfully pleaded,” it is held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Accordingly, a pro se plaintiff is not required to use specific legal terms or phrases, and the Court “will grant [ ] plaintiff[ ] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Communications Corp. 16 F.3d 1271, 1276 (D.C.Cir.1994) (citing Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99). “Nonetheless, a pro se complaint, like any other, must present a claim upon which relief can be granted by the court.” Henthorn v. Dep’t of Navy, 29 F.3d 682, 684 (D.C.Cir.1994) (quoting Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981)). A Plaintiffs Constitutional Claims 1. Excessive Force “[A]ll claims that law enforcement officers have used excessive force— deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a" }, { "docid": "22434317", "title": "", "text": "court, in an order filed January 29, 1991, dismissed several of appellant’s claims on the basis that they were barred by the doctrine of collateral estop-pel and dismissed the remainder of the claims because they failed to state a claim for which relief could be granted. DISCUSSION We review de novo a district court’s ruling on a motion to dismiss for failure to state a claim upon which relief can be granted. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Allegations in the plaintiff’s complaint are presumed true. Curtis Ambulance of Fla., Inc. v. Board of County Comm’rs, 811 F.2d 1371, 1374 (10th Cir.1987). The complaint will not be dismissed unless it appears that the plaintiff cannot prove facts entitling him to relief. Id. at 1375 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). We construe a pro se litigant’s pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989). Prior to addressing each of appellant’s arguments on appeal, we examine the process under Rule 12(b) for ruling on a motion to dismiss for failure to state a claim. The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted. In this case, we look to plaintiff’s amended complaint filed pursuant to Rule 15(a) because the amended complaint supersedes the original. Rule 12(b) provides that if matters outside the complaint are presented to and not excluded by the court, then the court should treat the motion as one for summary judgment under Rule 56 and not as a motion to dismiss. Fed.R.Civ.P. 12(b); see also Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972). Failure to convert to a summary judgment motion and to comply with Rule 56 when the court considers matters outside the plaintiff’s" }, { "docid": "22616788", "title": "", "text": "(10th Cir.), cert. denied, — U.S. -, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Meade, 841 F.2d at 1526; Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). If matters outside the pleadings are considered by the court, the Rule 12(b)(6) motion is treated as a motion for summary judgment and disposed of pursuant to Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b); Reed, 893 F.2d at 287 n. 2. Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss, giving plaintiff notice and opportunity to amend his complaint, a court may dismiss sua sponte “when it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” McKinney, at 365 (citations omitted). A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989). We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements. At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant. The broad reading of the plaintiff’s complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. Not every fact must be described" } ]

[ { "docid": "18229969", "title": "", "text": "ANICO can indeed enforce the provisions at issue in this litigation. As a general matter in Illinois, “[o]nly signatories to an arbitration agreement can file a motion to compel arbitration.” Bishop v. We Care Hair Dev. Corp., 316 Ill.App.3d 1182, 250 Ill.Dec. 394, 738 N.E.2d 610, 619 (2000). This principle is subject to certain “contract-based theories under which a nonsig-natory may be bound to the arbitration agreements of others,” including the third-party beneficiary doctrine. Ervin v. Nokia, Inc., 349 Ill.App.3d 508, 285 Ill.Dec. 714, 812 N.E.2d 534, 539 (2004). “Illinois recognizes two types of third-party beneficiaries, intended and incidental. An intended beneficiary is intended by the parties to the contract to receive a benefit for the performance of the agreement and has rights and may sue under the contract; an incidental beneficiary has no rights and may not sue to enforce them.” Estate of Willis v. Kiferbaum Const. Corp., 294 Ill.Dec. 224, 830 N.E.2d 636 (2005). For an intended third-party beneficiary to enforce contract terms, the liability of a promisor to the beneficiary “ ‘must affirmatively appear from the language of the instrument,’ ” id. (quoting Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252, 178 N.E. 498 (1931)), and the contract must be made for the direct benefit of the third party, Swavely v. Freeway Ford Truck Sales, Inc., 298 Ill.App.3d 969, 233 Ill.Dec. 80, 700 N.E.2d 181, 185 (1998); see also Cahill v. E. Benefit Sys., Inc., 236 Ill.App.3d 517, 177 Ill.Dec. 718, 603 N.E.2d 788, 791 (1992). It is not necessary that the beneficiary be identified by name in the contract, but it must be identified in some manner, for example, by describing the class to which it belongs. Holmes v. Fed. Ins. Co., 353 Ill.App.3d 1062, 289 Ill.Dec. 750, 820 N.E.2d 526, 530 (2004). Despite Illinois’ stringent requirements to demonstrate third-party beneficiary standing, we believe that ANICO may enforce terms of the Participation Agreement. ANICO is a beneficiary of the Participation Agreement as a pool participant. The Participation Agreement contemplates that Continental will participate to the extent of its agreed share in any reinsurance business" } ]

[ { "docid": "21801299", "title": "", "text": "Minor premise: Here, the nonsignatory plaintiffs are third-party beneficiaries of the arbitration agreement. Conclusion: Therefore, the nonsignatory plaintiffs are bound by the arbitration agreement. Defendants spend most of their briefing on the minor premise but then fail to cite to a single case to support the major premise. As the parties seeking to compel arbitration, Defendants have the burden to establish that the nonsignatory plaintiffs can be held to the arbitration agreement. See Hancock, 701 F.3d at 1261. Here, it is simply not enough to show that the nonsig-natory plaintiffs are third-party beneficiaries. Next, Defendants argue that the nonsignatory plaintiffs are bound to the arbitration agreement, which they never agreed to, “under the doctrine of equitable estoppel.” (Appellants’ Opening Br. at 23.) At different stages of these proceedings, Defendants seemingly advance two different theories of equitable estoppel. Below, Defendants advanced a theory of integrally-related-claim estoppel, sometimes referred to as the “intertwined claims” theory. (See Appellants’ App. at 84 (arguing that “[bjecause the non-signatories’ claims are identical to Jackie Jacks’ claims and are ‘integrally related’ to the [contract] setting forth the Arbitration Agreement, all Plaintiffs are subject to the Arbitration Agreement.”)). In some jurisdictions, this theory permits a nonsignatory to estop a signatory from eschewing arbitration when the claims are integrally related to a contract that contains an arbitration agreement. See Janvey v. Alguire, 847 F.3d 231, 242 (5th Cir. 2017). Insofar as Defendants continue to press this theory of estoppel on appeal, it “does not govern the present case, where a signatory-defendant seeks to compel arbitration with a nonsignatory-plaintiff.” Id.; see also Carter v. Schuster, 227 P.3d 149, 156 (Okla. 2009) (distinguishing between “estop[ping] a signatory from avoiding arbitration with a nonsignatory where the nonsignatory was seeking to resolve issues in arbitration that were intertwined with the agreement the estopped party had signed,” and estopping a nonsig-natory (emphasis in original)). On appeal, Defendants also argue for the “direct-benefit estoppel doctrine,” which “applies when a nonsignatory know'ingly exploits the agreement containing the arbitration clause.” (Appellants’ Opening Br. at 28-29 (quoting Hellenic Inv. Fund, Inc. v. Det Norske Veritas, 464 F.3d 514," }, { "docid": "22446037", "title": "", "text": "— McCarthy’s claims. See 9 U.S.C. § 3. D. Appellant’s Third-Party Beneñciary Theory. Appellant next posits that, as a third-party beneficiary of the Purchase Agreement’s arbitration clause, he can compel plaintiff to arbitrate. This claim also fails. As is generally the case in matters of contract interpretation, “[t]he crux in third-party beneficiary analysis ... is the intent of the parties.” Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, 795 F.2d 1111, 1117 (1st Cir.1986). Because third-party beneficiary status constitutes an exception to the general rule that a contract does not grant enforceable rights to nonsignatories, see, e.g., Arlington Trust Co. v. Estate of Wood, 123 N.H. 765, 465 A.2d 917, 918 (1993), a person aspiring to such status must show with special clarity that the contracting parties intended to confer a benefit on him. See Mowbray, 795 F.2d at 1117; Arlington Trust, 465 A.2d at 918; Tamposi Assocs. v. Star Mkt. Co., 119 N.H. 630, 406 A.2d 132, 134 (1979); see generally 3 E. Allan Farnsworth, Farnsworth on Contracts § 10.3, at 22-23 (1990); 4 Arthur Corbin, Contracts § 776 (1951). In this instance, we are unable to discern any indication in the Purchase Agreement that the parties meant to make their respective agents or employees third-party beneficiaries. Neither Azure nor any other employee of Theta II is mentioned explicitly in the Purchase Agreement; there are no meaningful categorical references; the critical provision in the contract, see supra note 11, omits any mention of agents and employees; and we can find no principled basis for including Azure by necessary implication (especially since the contract contains an integration clause). These facts strongly militate against conferring third-party beneficiary status upon a corporate officer with respect to arbitration rights. See Shaffer v. Stratton Oakmont, Inc., 756 F.Supp. 365, 369 (N.D.Ill.1991) (refusing to find a third-party beneficiary relationship generating an obligation to arbitrate in analogous circumstances); Lester v. Basner, 676 F.Supp. 481, 484-85 (S.D.N.Y.1987) (refusing to find an obligation to arbitrate under a third-party beneficiary theory when the contract itself “is silent as to whether [its] terms” apply to the purported third-party beneficiaries). The record" }, { "docid": "6683696", "title": "", "text": "was selHng paint containing VYES to Cooper or companies like Cooper. Yet the fact that a seller knows that an intermediate buyer of its products wiH immediately resell the product is not sufficient to make the ultimate buyer an intended beneficiary of the original sales contract. Commonwealth Propane Co. v. Petrosol Int’l, Inc., 818 F.2d 522, 531-32 (6th Cir.1987) (Ohio law). Contract law significantly circumscribes the abihty of remote parties to enforce others’ promises for good reasons, one of which is to prevent the nearly Hmitless liabiHty that Cooper’s theory would impose. There is no evidence in this case that Carbide and PFI entered into a contract with the intent to benefit Cooper or that the parties intended to create third-party-beneficiary rights. Cooper is, at best, a mere incidental beneficiary. We therefore agree with the district court that Cooper cannot maintain its claims against Carbide for breach of contract and warranty. See id.; St. Paul Fire & Marine Ins. Co. v. R.V. World, 62 Ohio App.3d 535, 577 N.E.2d 72, 75 (1989); Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 471 N.W.2d 179, 187 n. 15 (1991). 2. Tort Claims The district court held that Cooper’s tort claims were barred by the “economic loss” doctrine. In Wisconsin, “a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories.” Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis.2d 910, 437 N.W.2d 213, 217-18 (1989). Cooper urges that economic loss is recover able in tort when there is no privity between the parties, as in the case of Carbide and Cooper. Applying Wisconsin law, however, we have already stated otherwise: “Privity of contract is not an element of the economic loss doctrine.” Miller v. United States Steel Corp., 902 F.2d 573, 575 (7th Cir.1990). We considered the issue again in Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295 (7th Cir.1991), repeating that “there is now substantial evidence that Wisconsin would decline in all circumstances to allow a negligence suit for the recovery of only economic damages, even" }, { "docid": "23070434", "title": "", "text": "next higher number. This provision is an incentive to project owners to lease Contract units to eligible lower income families. There is no other express requirement for owners, detailed in the Contract, concerning either certification of eligible families within any specific time period or retroactive certification to the Contract date. . Federal common law applies to plaintiffs’ third-party beneficiary claims since a federal agency is a party to the action and since the outcome of this case will directly affect substantial financial obligations of the United States. See United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977), does not suggest a contrary result. The Court in Miree held that state and not federal common law applied to third-party beneficiary claims arising out of a contract between the Federal Aviation Administration and DeKalb County. Central to the Court’s holding, however, was the fact that the United States, although a party to the contract, was not named as a defendant in the breach of contract claim. Therefore, in sharp contrast with the case before us, only the rights of private litigants were at issue, and resolution of the dispute would have had “no direct effect upon the United States or its Treasury.” Id. at 29, 97 S.Ct. at 2493. We note, however, that our result as to the third-party beneficiary claim would be the same if analyzed under Wisconsin law. See Mercado v. Mitchell, 83 Wis.2d 17, 264 N.W.2d 532 (1978); Schell v. Knickelbein, 77 Wis.2d 344, 252 N.W.2d 921 (1977); In re Bratt, 257 Wis. 447, 43 N.W.2d 817 (1950). . Consistent with the scheme set forth in the Restatement of Contracts § 133 (1932), most court decisions have recognized three classes of third-party beneficiaries — donee, creditor and incidental — with different rules governing the rights of each class. It has been suggested, for example, that a contracting party’s “intent to benefit” a" }, { "docid": "23070435", "title": "", "text": "however, was the fact that the United States, although a party to the contract, was not named as a defendant in the breach of contract claim. Therefore, in sharp contrast with the case before us, only the rights of private litigants were at issue, and resolution of the dispute would have had “no direct effect upon the United States or its Treasury.” Id. at 29, 97 S.Ct. at 2493. We note, however, that our result as to the third-party beneficiary claim would be the same if analyzed under Wisconsin law. See Mercado v. Mitchell, 83 Wis.2d 17, 264 N.W.2d 532 (1978); Schell v. Knickelbein, 77 Wis.2d 344, 252 N.W.2d 921 (1977); In re Bratt, 257 Wis. 447, 43 N.W.2d 817 (1950). . Consistent with the scheme set forth in the Restatement of Contracts § 133 (1932), most court decisions have recognized three classes of third-party beneficiaries — donee, creditor and incidental — with different rules governing the rights of each class. It has been suggested, for example, that a contracting party’s “intent to benefit” a third party is relevant if the third party is viewed as a donee beneficiary, but not if the third party is viewed as a creditor beneficiary. Isbrandtsen Co. v. Local 1291, Int’l Longshoremen’s Ass’n, 204 F.2d 495, 497 n.11 (3d Cir. 1953). We decline to follow this approach, since it fails to focus on the central interpretative question involved in third-party beneficiary problems: did the contracting parties intend that the third party benefit from the contract? We prefer the approach of the Restatement (Second) of Contracts § 133 (Tent. Draft No. 4, 1968), which divides beneficiaries into two classes — intended and incidental. Section 133 provides: (1) Unless otherwise agreed between promis- or and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the promisee manifests an intention to give the beneficiary" }, { "docid": "2057763", "title": "", "text": "at 407. In Cutting, 820 F.Supp. at 1152, a plan refused to provide reimbursements to a beneficiary until she signed a subrogation agreement that provided the plan with a priority right to all claims by her against a third party. The beneficiary requested that this court adopt the “make-whole” doctrine as federal common law and set aside the subrogation provision. I de- dined to do so, reasoning that it would “be tantamount to dictating the substance of defendant’s Plan, and would have the effect of allowing state law to govern in an area in which state law is preempted.” An additional factor that militated against doing so was the rationale articulated in Holliday, that to do so would interfere with the “calculation of uniform benefits nationwide.” Cutting, 820 F.Supp. at 1152 (citing Holliday, 498 U.S. at 60, 111 S.Ct. at 409). In this case, however, application of the make-whole doctrine would not supplant or dictate the terms of the plan. The doctrine would serve strictly as a default rule to be applied only when a plan fails to designate priority rules or provide its fiduciaries the discretion necessary to construe the plan accordingly. In the alternative, the plan and its beneficiaries could avoid the application of this doctrine by agreeing to designate the insurance proceeds. Adoption of the make-whole doctrine as a default priority rule appears consistent with the congressional mandate to fashion federal common law to facilitate the ERISA scheme. Assuming the propriety under the ERISA framework of adopting the make-whole doctrine as federal common law, there remains for consideration the practicality of this solution. According to Rimes, 106 Wis.2d 263, 316 N.W.2d 348, the mere fact that the Scheideler children have executed a release in exchange for Dairyland’s tender of the $50,000 proceeds into court does not mean that they have been fully compensated. Rimes, 106 Wis.2d 263, 316 N.W.2d 348, 354. However, to determine whether a subrogor has been made whole by a settlement, a trial is necessary to determine the extent of his or her damages. A jury trial is not required. Id. 316 N.W.2d at" }, { "docid": "2057762", "title": "", "text": "of equitable subrogation is to prevent a double recovery by the subro-gor. It would distort this doctrine to adopt a priority rule that presumes that some or all of the unidentified insurance proceeds duplicate disbursements made by the plan and disregards whether beneficiaries are compensated for their injuries. For these reasons, I will refrain from adopting a common law priority rule that favors the plan. An alternative default priority rule exists in Wisconsin’s common law “make-whole” doctrine, which provides that an insurer cannot assert a subrogation right until the insured is fully compensated for his or her injuries. See, e.g., Rimes, 106 Wis.2d at 271, 316 N.W.2d at 354; Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512 (1977). The doctrine is not unique to this state; in fact, it is the majority rule. See Windt, supra at 533; Robert E. Keeton and Alan I. Widiss, Insurance Law § 3.10 at 236 (1988). It is well established that state subrogation doctrines are preempted under ERISA. Holliday, 498 U.S. at 56-58, 111 S.Ct. at 407. In Cutting, 820 F.Supp. at 1152, a plan refused to provide reimbursements to a beneficiary until she signed a subrogation agreement that provided the plan with a priority right to all claims by her against a third party. The beneficiary requested that this court adopt the “make-whole” doctrine as federal common law and set aside the subrogation provision. I de- dined to do so, reasoning that it would “be tantamount to dictating the substance of defendant’s Plan, and would have the effect of allowing state law to govern in an area in which state law is preempted.” An additional factor that militated against doing so was the rationale articulated in Holliday, that to do so would interfere with the “calculation of uniform benefits nationwide.” Cutting, 820 F.Supp. at 1152 (citing Holliday, 498 U.S. at 60, 111 S.Ct. at 409). In this case, however, application of the make-whole doctrine would not supplant or dictate the terms of the plan. The doctrine would serve strictly as a default rule to be applied only when a" }, { "docid": "18491790", "title": "", "text": "of intention to confer a right is uncertain, court may look to factors independent of the parties’ intention, such as overriding policy). Moreover, given the customary contractual and regulatory constraints prevalent in the legal and financial setting in which the Sellback Agreement and the PSAs were to be performed, appellants could not reasonably imply a right to enforce performance by PSNH which did not comport with the express terms of the parties’ agreement. As the record before the bankruptcy court raises no genuine issue of fact material to appellants’ asserted status as intended beneficiaries under the Sellback Agreement, and as PSNH was entitled to judgment as a matter of law, the entry of summary judgment was proper. See Siegal v. American Honda Motor Co., 921 F.2d 15, 17 (1st Cir.1990). 2. Promissory Estoppel Appellants attempt to interpose a promissory estoppel claim as an alternative basis for their asserted right to performance under the Sellback Agreement. Appellants predicate their promissory estoppel claim not on Massachusetts decisional law but exclusively on the caselaw of the supreme courts of Hawaii and Wisconsin, which have permitted a third party action against a promisor where it appears that the third party foreseeably and detrimentally relied on the promise. See Silberman v. Roethe, 64 Wis.2d 131, 133, 218 N.W.2d 723, 731 (1974); Ravelo v. County of Hawaii, 66 Haw. 194, 658 P.2d 883, 887 (1983). Appellants neither cite to relevant Massachusetts authority nor attempt to demonstrate that the SJC, given the opportunity, would extend the doctrine of promissory estoppel to nonparties; indeed, our research has disclosed that only five courts have taken the suggested step. See Ravelo, 658 P.2d at 887; Silberman, 218 N.W.2d at 731; Dallum v. Farmers Union Central Exchange, 462 N.W.2d 608, 613-14 (Minn.App.1990); Burgess v. California Mut. Bldg. & Loan Assoc., 210 Cal. 180, 290 P. 1029, 1031-32 (1930); Lear v. Bishop, 86 Nev. 709, 476 P.2d 18, 22 (1970). See generally Metzger & Phillips, Promissory Estoppel and Third Parties, 42 Sw. L.J. 931 (1988). As appellants can point to no authoritative indication that Massachusetts would extend the protection of promissory estop-pel" }, { "docid": "21801298", "title": "", "text": "the nonsignatory plaintiffs are not third-party beneficiaries to the contract as a whole. (Appellants’ Reply Br. at 10 n.9.) Defendants focus instead on the arbitration agreement itself, which designates “any occupants of the Manufactured Home” as “intended beneficiaries of this Arbitration Agreement.” (Appellants’ App. at 31.) The “benefit,” according to Defendants, is the right to compel arbitration. But Defendants have not cited authority, and we are not aware of any, that says a contract (here, the arbitration agreement) can be enforced against an intended third-party beneficiary who has not accepted the benefit (here, the right to compel arbitration) or otherwise sought to enforce the terms of the contract. Cf. Restatement (Second) of Contracts § 306 cmt. b (1981) (“[A] beneficiary is entitled to reject a promised benefit.”). Such a rule would make no sense: unwitting third parties could be bound to a contract without knowing its terms or ever realizing some benefit. At bottom, Defendants’ argument reduces to the following syllogism: Major premise: A third-party beneficiary to an arbitration agreement is bound by the agreement. Minor premise: Here, the nonsignatory plaintiffs are third-party beneficiaries of the arbitration agreement. Conclusion: Therefore, the nonsignatory plaintiffs are bound by the arbitration agreement. Defendants spend most of their briefing on the minor premise but then fail to cite to a single case to support the major premise. As the parties seeking to compel arbitration, Defendants have the burden to establish that the nonsignatory plaintiffs can be held to the arbitration agreement. See Hancock, 701 F.3d at 1261. Here, it is simply not enough to show that the nonsig-natory plaintiffs are third-party beneficiaries. Next, Defendants argue that the nonsignatory plaintiffs are bound to the arbitration agreement, which they never agreed to, “under the doctrine of equitable estoppel.” (Appellants’ Opening Br. at 23.) At different stages of these proceedings, Defendants seemingly advance two different theories of equitable estoppel. Below, Defendants advanced a theory of integrally-related-claim estoppel, sometimes referred to as the “intertwined claims” theory. (See Appellants’ App. at 84 (arguing that “[bjecause the non-signatories’ claims are identical to Jackie Jacks’ claims and are ‘integrally related’ to" }, { "docid": "7395580", "title": "", "text": "University of Wisconsin-Milwaukee, 783 F.2d 59 (7th Cir.1986), the court finds this distinction insignificant for present purposes. A court’s decision to forego any discussion of the whether the FMLA imposes any limitations upon the application of pri- or administrative decision might not necessarily imply that the courts found no such limitation in light of the fact that in all the cases cited above the courts found other reasons why preclusion did not apply. However, in at least one case, Serafín v. Connecticut, 2005 WL 578321, *7, 2005 U.S. Dist. LEXIS 3603, 26-27 (D.Conn. Mar. 9, 2005), a court concluded that an arbitrator’s prior unfavorable decision under a collective bargaining agreement did bar the plaintiff’s FMLA claim because, in the court’s view, the plaintiffs choice to arbitrate her claim waived her right to bring a federal action. Id. at *9, 2005 U.S. Dist. LEXIS 3603, at *32. Although citing Kosakow for a different point of law, the court did not address the question of whether Congress explicitly or implicitly stated in the FMLA that prior administrative decisions should not be given preclusive effect. Therefore, based upon this court’s review of the related case law, and specifically, the analysis set forth by the court in Kosakow, this court shares the approach taken by the Second Circuit and concludes that the factual determinations of state administrative agencies may be afforded preclusive effect in a subsequent claim under the FMLA. Thus, this court must look to Wisconsin’s law regarding issue preclusion to determine whether the PRB’s conclusion that Webster violated the county’s attendance policy precludes him from bringing his present FMLA claim. See Kosakow, 274 F.3d at 729 (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 381-82, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985)). B. Application of Issue Preclusion The PRB is authorized under state laws and county ordinances to adjudicate matters that relate to the discipline and discharge of county employees. State ex rel. Milwaukee County Pers. Review Bd. v. Clarke, 2006 WI App 186, ¶ 34, 296 Wis.2d 210, 723 N.W.2d 141. Although the decision of the PRB is" }, { "docid": "14761785", "title": "", "text": "conspiracy claims on that basis alone. Conclusion For the reasons set forth in this opinion, we affirm the District Court’s dismissal of all of the plaintiff’s claims. Affirmed. . The trial court treated her Title VII claim as a race discrimination claim because Ratliff put on no evidence that her supervisors treated her differently because of her sex. We agree. . See supra note 1. . Ratliffs case has now been heard by three fact finders, with varying results. Prior to this suit, after a hearing before the Wisconsin Department of Industry, Labor and Human Relations, Ratliffs race and sex discrimination complaint alleging violations of the Wisconsin Fair Employment Act was dismissed for failure to present a prima facie case of discrimination. Wis.Stat. §§ 111.31-111.37. Reaching a contrary result under the collective bargaining agreement, an arbitrator found that Ratliff had been terminated without cause. He ordered that she be reinstated with back pay, but the award was vacated by the Circuit Court of Milwaukee County based on the decision in Milwaukee Police Association v. City of Milwaukee, 113 Wis.2d 192, 335 N.W.2d 417 (Wis.App.), review denied, 114 Wis.2d 602, 340 N.W.2d 201 (Wis.1983), which held that the termination of a probationary employee is not arbitrable under the police collective bargaining agreement. Finally, Judge Warren heard this case de novo. It is not our role to retry the facts again. . If defendants had deprived Ratliff of her liberty interest in pursuing her occupation by publicizing false charges of either dishonesty, gross incompetence, or the like, which they did not do, she could not regain her position on the Milwaukee Police Department. Her only remedy would be a name clearing hearing. She complains that defendants deprived her of other job opportunities by firing her for reasons which were stigmatizing, but any adverse consequences suffered by the plaintiff were due to the defendants’ justified actions in firing her for cause, stigmatizing or not. ”[T]he State remains free to terminate or decline to rehire a non-tenured employee for no reason at all or for stigmatizing, even false reasons privately stated.” Dennis v. S" }, { "docid": "10921182", "title": "", "text": "unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” (emphasis omitted)). In this case, Life of the South contends that it can enforce the arbitration clause in the loan agreement, to which it was not a party, against the Lawsons who were parties, under two traditional state-law principles. Life of the South essentially argues that it can compel the Lawsons to arbitrate under their loan agreement with the ear dealership because it is a third party beneficiary to that agreement’s arbitration clause, or that it can do so under the doctrine of equitable estoppel. We disagree. A Georgia law applies in this case. See World Harvest Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d 950, 956 (11th Cir.2009). Under it “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” Ga. Code Ann. § 9-2-20(b); U.S. Foodservice, Inc. v. Bartow Cnty. Bank, 300 Ga.App. 519, 685 S.E.2d 777, 779 (2009). Third-party beneficiaries have standing to enforce contracts intended for their benefit. U.S. Foodservice, 685 S.E.2d at 779. “There must be a promise by the promisor to the promisee to render some performance to a third person,” Danjor, Inc. v. Corporate Constr., Inc., 272 Ga.App. 695, 613 S.E.2d 218, 221 (2005), and “the contracting parties’ intention to benefit the third party must be shown on the face of the contract.” Donnalley v. Sterling, 274 Ga.App. 683, 618 S.E.2d 639, 641 (2005). The scope of the arbitration clause in the loan agreement between the car dealership and the Lawsons is broad, even expressly referring to disputes involving the Lawsons’ “insurer,” but the right to enforce that clause is clearly limited to the Lawsons, the car dealership, Chase Manhattan, and any assignees of the car dealership or Chase Manhattan. (Life of the South does not contend that it is an assignee.) The arbitration clause in the loan agreement is not mandatory; it does not require that every dispute falling within its scope be arbitrated. Instead," }, { "docid": "14761774", "title": "", "text": "113 Wis.2d 192, 335 N.W.2d 417 (Wis.App.), review denied, 114 Wis.2d 602, 340 N.W.2d 201 (Wis.1983). Ratliff argues that the collective bargaining agreement, as construed by the arbitrator in her case, is an independent source of an “understanding” that creates a legitimate claim to and property interest in her job. A property interest in a job can be created by a collective bargaining agreement. Cf. Roth, 408 U.S. at 578, 92 S.Ct. at 2709 (university rule or policy). In this case, the arbitrator held that the termination of a probationary police officer was arbitrable under the collective bargaining agreement, and that a probationary employee could only be fired for good cause. He found that Ratliff was not fired for good cause. However, the Circuit Court of Milwaukee County vacated and dismissed the arbitrator’s award in favor of Ratliff based on the decision in Milwaukee Police Association, 113 Wis.2d 192, 335 N.W.2d 417 (Wis.App.1983). Milwaukee Police Association and Beverly J. Ratliff v. City of Milwaukee, No. 596-174, slip op. (Milwaukee County Cir.Ct. October 5, 1983). Thus, the collective bargaining agreement created no property interest for Ratliff or other probationary employees. The district court correctly points out that if the termination of a probationary employee was arbitrable, the significance of a probationary term would be wholly vitiated because it would transfer to the arbitrator the power to determine if “an officer should advance from probationary to permanent status or should be terminated during probation.” 113 Wis.2d at 196, 335 N.W.2d at 419. This, the court reasoned, would thwart the express power to select which the Wisconsin statute vests in police chiefs and boards. Id., citing, Wis. Stat. §§ 62.13(4) and 165.85. The plaintiff attempts to distinguish the Wisconsin cases by asserting that the employer’s motive in those cases was not tainted by racial animus, as is allegedly the case here. The employer’s reason for firing a probationary employee is irrelevant to the issue of whether an independent, source of state law creates a property interest in continued employment. Liberty Interest Similarly, Ratliff failed to prove that she was deprived of a protected" }, { "docid": "1308041", "title": "", "text": "parties agree that Minnesota law applies here. The only Minnesota Supreme Court case mentioning equitable estoppel in the arbitration context is Onvoy, Inc. v. SHAL, LLC, 669 N.W.2d 344 (Minn.2003). In that case, the court stated the general rule that “arbitration clauses are contractual and cannot be enforced by persons who are not parties to the contract.” Id. at 356. The court then explained that equitable estoppel is an exception to the rule and “prevents a signatory from relying on the underlying contract to make his or her claim against the nonsignatory.” Id. The court did not reach the issue of whether equitable estoppel applied, however, because it remanded the ease on other grounds. Id. at 357. One unpublished Minnesota Court of Appeals case has evaluated when equitable estoppel applies in the arbitration context, but Minnesota law specifies that unpublished cases are not precedential. Minn.Stat. § 480A.08(3)(c). Minnesota appears to follow federal law regarding equitable estoppel. See Onvoy, 669 N.W.2d at 356 (“Federal cases have set out at least three principles on which a nonsignatory to a contract can compel arbitration: equitable estoppel, agency, and third-party beneficiary.” (citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999), abrogated on other grounds by Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009))). Since we do not have any published Minnesota cases applying equitable estoppel, and since Minnesota appears to follow federal law regarding equitable estoppel, we look to federal law here. We addressed the doctrine of equitable estoppel in PRM Energy Systems. In that case, we explained: [Equitable] estoppel typically relies, at least in part, on the claims being so intertwined with the agreement containing the arbitration clause that it would be unfair to allow the signatory to rely on the agreement in formulating its claims but to disavow availability of the arbitration clause of that same agreement. PRM Energy Sys., 592 F.3d at 835 (footnote added). A non-signatory can “force a signatory into arbitration under the [equitable] estoppel theory when the relationship of the persons, wrongs and issues involved is" }, { "docid": "21848949", "title": "", "text": "may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. . D'Amato argues that Congress could not have meant the administrative remedies of Section 503 to be exclusive, because it has not preempted state laws banning discrimination against the handicapped. This argument conflates preemption analysis with the determination whether Congress intended a federal remedy in addition to the one explicitly authorized in the statute to be available. D’Amato's argument also overly generalizes the situation by not focusing on whether certain potential state remedies — specifically state law third-party beneficiary claims — would conflict with federal law, while other state remedies might harmonize with the federal scheme. In fact at least two courts have found state common law claims based on the affirmative action clauses at stake here preempted by Section 503. Howard v. Uniroyal, Inc., supra; Stephens v. Roadway Express Co., 29 Empl.Prac.Dec. ¶ 32,941 at 26,454-26,455 (N.D.Ga.1982) (also rejecting a third-party beneficiary claim based on federal common law, id. at 26,455). . Wisconsin common law would bar such a claim, for its courts would treat the state statutory remedy available for discrimination against the handicapped as the exclusive remedy available for wrongful discharge. Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 576 n. 17, 335 N.W.2d 834 n. 17 (1983). Indeed the district court treated this claim as one based on state law. But it is barred even if it arises under federal law, for the reasons discussed herein. . The OFCCP has not approved the conciliation agreement the Company proposed in October 1982. Whether we could allow suit if the Company had signed a conciliation agreement is a question that is not before us and that we do not decide. . As will be discussed infra, D’Amato also could have instituted proceedings under the collective bargaining agreement between the Company and the Union. Alternatively, state proceedings are available, and D’Amato is in fact pursuing such a claim against the Company (Br. at 14). Our decision today does not leave those in his position without a remedy. . Section 1985(3)" }, { "docid": "12746403", "title": "", "text": "F.3d 249, 261-62 & n. 9 (5th Cir.2014) (collecting cases). The parties have not cited, and I have not found, any Wisconsin cases addressing the issue of when a non-signatory to an agreement may use equitable estoppel to enforce an arbitration clause that appears in that agreement. However, the general elements of equitable estoppel under Wisconsin law are the following: (1) action or non-action; (2) on the part of one against whom estoppel is asserted; (3) which induces reasonable reliance thereon by the other, either in action or non-action; (4) which is to the relying party’s detriment. See, e.g., Affordable Erecting, Inc. v. Neosho Trompler, Inc., 291 Wis.2d 259, 275, 715 N.W.2d 620 (2006). In the present case, none of these elements is present. Pagan has not taken any action or non-action that has induced reasonable reliance by Integrity or that has caused Integrity any detriment. Thus, if the issue of equitable estoppel is governed by state law, Pagan would not be estopped from avoiding the arbitration clause. Turning to federal law, the parties have not cited, and I have not found, any cases decided by the Supreme Court that address the question of when a nonsignatory to an agreement can use equitable estoppel to enforce an arbitration clause that appears in that agreement. In Arthur Andersen LLP v. Carlisle, the Supreme Court held that “traditional principles of state law,” including estoppel, could be applied to allow a nonsignatory to enforce an arbitration clause. 556 U.S. 624, 631, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). However, the Court did not identify the circumstances under which it would be appropriate to apply equitable estoppel to prevent a party from avoiding arbitration with a nonsignatory. Id. at 632, 129 S.Ct. 1896 (“[W]e need not decide here whether the relevant state contract law recognizes equitable estoppel as a ground for enforcing contracts against third parties, what standard it would apply, and whether petitioners would be entitled to relief under it. These questions have not been briefed before us and can be addressed on remand.”). There is one case from the Seventh Circuit that" }, { "docid": "7395581", "title": "", "text": "decisions should not be given preclusive effect. Therefore, based upon this court’s review of the related case law, and specifically, the analysis set forth by the court in Kosakow, this court shares the approach taken by the Second Circuit and concludes that the factual determinations of state administrative agencies may be afforded preclusive effect in a subsequent claim under the FMLA. Thus, this court must look to Wisconsin’s law regarding issue preclusion to determine whether the PRB’s conclusion that Webster violated the county’s attendance policy precludes him from bringing his present FMLA claim. See Kosakow, 274 F.3d at 729 (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 381-82, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985)). B. Application of Issue Preclusion The PRB is authorized under state laws and county ordinances to adjudicate matters that relate to the discipline and discharge of county employees. State ex rel. Milwaukee County Pers. Review Bd. v. Clarke, 2006 WI App 186, ¶ 34, 296 Wis.2d 210, 723 N.W.2d 141. Although the decision of the PRB is considered final, Wis. Stat. § 63.10(2), “[i]t is well established in this state that where there are no statutory provisions for judicial review, the action of a board or commission may be reviewed by way of certiorari.” State ex rel. Iushewitz v. Milwaukee County Personnel Review Bd., 176 Wis.2d 706, 710, 500 N.W.2d 634 (Wis.1993) (quoting State ex rel. Johnson v. Cady, 50 Wis.2d 540, 549-50, 185 N.W.2d 306 (1971) in turn citing State ex rel. Kaczkowski v. Fire & Police Comm’rs, 33 Wis.2d 488, 501, 148 N.W.2d 44 (1967)); see also Wis. Stat. § 68.13. Certiorari review of a decision of an administrative agency is limited to questions of law and addresses the following issues: (1) Whether the board kept within its jurisdiction; (2) Whether the board proceeded on a correct theory of the law; (3) Whether the board’s action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) Whether the evidence was such that it might reasonably make the order or determination in question. Gentilli v. Bd." }, { "docid": "14761773", "title": "", "text": "process claim because she did not have a protecta-ble property interest in her job as a probationary police officer under Wisconsin law, nor did the defendants invade any protecta-ble liberty interest. Property Interest A property interest in a job is created and “defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The source of the interest must “secure certain benefits” and “support claims of entitlement to those benefits.” Id. Ratliff did not show that she had “more than a unilateral expectation” of continued employment as a police officer — that she had a “legitimate entitlement” to her job. Under Wisconsin law, a probationary police officer has no more than a unilateral expectation of fulfilling her probationary period and being hired as a permanent officer. See Kaiser v. Board of Police and Fire Commissioners of City of Wauwatosa, 104 Wis.2d 498, 311 N.W.2d 646 (1981); Milwaukee Police Association v. City of Milwaukee, 113 Wis.2d 192, 335 N.W.2d 417 (Wis.App.), review denied, 114 Wis.2d 602, 340 N.W.2d 201 (Wis.1983). Ratliff argues that the collective bargaining agreement, as construed by the arbitrator in her case, is an independent source of an “understanding” that creates a legitimate claim to and property interest in her job. A property interest in a job can be created by a collective bargaining agreement. Cf. Roth, 408 U.S. at 578, 92 S.Ct. at 2709 (university rule or policy). In this case, the arbitrator held that the termination of a probationary police officer was arbitrable under the collective bargaining agreement, and that a probationary employee could only be fired for good cause. He found that Ratliff was not fired for good cause. However, the Circuit Court of Milwaukee County vacated and dismissed the arbitrator’s award in favor of Ratliff based on the decision in Milwaukee Police Association, 113 Wis.2d 192, 335 N.W.2d 417 (Wis.App.1983). Milwaukee Police Association and Beverly J. Ratliff v. City of Milwaukee, No. 596-174, slip op. (Milwaukee County Cir.Ct. October 5, 1983). Thus," }, { "docid": "20777351", "title": "", "text": "district court must make the following inquiries before admitting expert testimony: First, the expert must be qualified by knowledge, skill, experience, tráining, or education; second, the proposed expert testimony must assist the trier of fact in determining a relevant fact at issue in the case; third, the expert’s testimony must be based on sufficient facts or data and reliable principles and methods; and fourth, the expert, must have reliably, applied the principles and methods to the facts of the case. See Fed.R.Evid. 702; Smith, 215 F.3d at 717-19. B. Wisconsin Law of Professional Negligence In Wisconsin a claim of negligence has four elements: (1) the existence of a duty of care on the part of the defendant; (2) a breach of that duty of care; (3) a causal connection between the defendant’s breach of the duty of care and the plaintiffs injury; and (4) actual loss or damage resulting from the injury. Hornback v. Archdiocese of Milwaukee, 313 Wis.2d 294, 752 N.W.2d 862, 867 (2008). On the question of duty, Wisconsin follows Judge Andrews’s dissent in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), see, e.g., Behrendt v. Gulf Underwriters Ins. Co., 318 Wis.2d 622, 768 N.W.2d 568 (2009),' distilled succinctly as the principle that “[e]very one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others,” Palsgraf, 162 N.E. at 103 (Andrews, J., dissenting). The duty of care in Wisconsin negligence law is simply stated as the duty to exercise reasonable care under the circumstances. That standard is inherently quite abstract and must be defined more specifically for any given ease. See Hoida, Inc. v. M & I Midstate Bank, 291 Wis.2d 283, 717 N.W.2d 17, 29 (2006) (the scope of that duty of care “depends on the circumstances under which the claimed duty arises” and “may depend on the relationship between the parties or on whether the alleged tortfeasor assumed a special role in regard to the injured party”). Where the specifics of a defendant’s duty of care involve specialized knowledge, plaintiffs" }, { "docid": "20604661", "title": "", "text": "are enforceable by or against Nguyen, much less why they should give rise to constructive notice of Barnes & Noble’s browsewrap terms. C. Barnes & Noble argues in the alternative that the district court erroneously rejected its argument that Nguyen should be equitably estopped from avoiding arbitration because he ratified the Terms of Use by relying on its choice of law provision in his complaint and asserting class claims under New York law. Reviewing the district court’s decision for abuse of discretion, Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir.2008), we reject Barnes & Noble’s argument for two reasons. First, the doctrine of direct benefits estoppel does not apply to the facts at hand. Federal courts have recognized that the obligation to arbitrate under the FAA does not attach only to one who has personally signed the arbitration provision. Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995). Instead, a non-signatory to an arbitration agreement may be compelled to arbitrate where the nonsignatory “knowingly exploits” the benefits of the agreement and receives benefits flowing directly from the agreement. See MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 61 (2d Cir.2001); see also Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626, 977 N.Y.S.2d 685, 999 N.E.2d 1130, 1134 (2013). But Nguyen is not the type of non-signatory contemplated by the rule. Equitable estoppel typically applies to third parties who benefit from an agreement made between two primary parties. See, e.g., Wash. Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260, 267-68 (5th Cir.2004) (estopping nonsignatory wife of borrower from avoiding arbitration clause of loan agreement made between her husband and lender); Parillo v. Nataro, 34 Misc.2d 800, 229 N.Y.S.2d 492, 493-94 (Sup.Ct.1962) (applying equitable estoppel to third-party beneficiary of insurance con tract). Here, Nguyen is not a third-party beneficiary to Barnes & Noble’s Terms of Use, and whether he is a primary party to the Terms of Use lies at the heart of this dispute. Second, we are unable to find any case law holding that reliance" } ]

[ { "docid": "21901991", "title": "", "text": "set forth: (a) whether mov-ants have shown that unless a stay is granted they will suffer irreparable injury; (b) whether a stay would substantially harm other parties to the litigation; and (c) where lies the public interest? 395 F.2d at 686. We consider the various applicable factors in reverse order. The appellant has not demonstrated any public interest overriding the asserted claims of impermissible deprivation of constitutionally protected rights to due process. Likewise, the appellant has not negated the real likelihood of substantial harm to the appellee, the only other party to the litigation, during an appeal-related stay. We do not deem it to be a satisfactory answer to say, as does the appellant, that if the appellee ultimately prevails he will be deemed to have held office continuously since his purported removal from office. Such retroactive balm would scarcely heal the wounds of divestiture from a statutorily specified term of office under the cloud of an assertion by the chief executive of the state of “incompetence, neglect of duty and malfeasance in office and other cause.” As we read the appellant’s motion he does not purport to claim that he will suffer irreparable injury unless a stay is granted unless such a claim is found in the averment that in the absence of a stay the district court “threatens to immediately impose sanctions against defendant.” A violation of a court order may well produce the imposition of sanctions. That other purported appointees to a vacancy predicated upon constitutionally impermissible grounds may suffer harm, such persons not being parties to this litigation, is not here persuasive, particularly in the absence of a more clearly demonstrable entitlement on their part. Turning then to the remaining factor, and without expressing any opinion on the ultimate merits of the appeal, we are of the opinion that the appellant has not made the requisite substantial showing of probable success. We do not undertake lightly an intrusion into the affairs of state government. However, the wording of 42 U.S.C. § 1983 is clear: “Every person who, under color [of state law] subjects, or causes to" } ]

[ { "docid": "3476459", "title": "", "text": "PER CURIAM. The defendant school board appeals the judgment finding that the display of the Ten Commandments on public school property violates the Establishment Clause of the First Amendment and ordering the removal of the Ten Commandments monuments from the “Foundations of American Law and Government” displays located on the property of four Adams County High Schools. The district court denied a motion for a stay of the judgment pending appeal, and the defendant now moves this court to stay the order requiring the removal of the Ten Commandments monuments. Alternatively, the defendant requests that the Ten Commandments monuments be covered rather than removed pending this appeal. The plaintiffs oppose the motion for a stay. The court balances the traditional factors governing injunctive relief in ruling on motions to stay pending appeal. Thus, we consider (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. See Grutter v. Bollinger, 247 F.3d 631, 632 (6th Cir.2001) (order); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). These factors are to be balanced. The strength of the likelihood of success on the merits that needs to be demonstrated is inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. However, in order to justify a stay of the district court’s ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). The First Amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof....” In determining whether the inclusion of the Ten Commandments in the Foundations of American Law and Government" }, { "docid": "13422615", "title": "", "text": "it called “abdication standing,” under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. Id. at — - —, 2015 WL 648579 at *28-34. The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that DAPA’s implementation would violate the APA’s notice-and-comment requirements. Id. at —, 2015 WL 648579 at *62. The court did not “address[] Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Id. at —, 2015 WL 648579 at *61. The government’s motion for a stay pending appeal is based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also urges that, the injunction’s nationwide scope is an abuse of discretion. II. ‘We consider four factors in deciding whether to grant a stay pending appeal: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other par ties interested in the proceeding; and (4) where the public interest lies.’ ” To succeed on the merits, the government must show that the district court abused its discretion by entering a preliminary injunction. A decision “grounded in erroneous legal principles is reviewed de novo,” and findings of fact are reviewed for clear error. “A stay ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’ ” III. We begin by deciding whether the government has made a strong showing that it is likely to succeed on the merits of its claim that the states lack standing. It has not done so. We reach only the district court’s first basis for standing — the driver’s license rationale — because it is disposi-tive. The states have the burden of establishing" }, { "docid": "17876270", "title": "", "text": "In making its determination, the Court has considered the factors laid down by the Second Circuit in Hirschfeld, v. Board of Elections, 984 F.2d 85 (2d Cir.1992): “(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that might be affected.” Id. at 39 (quotation marks omitted); see also In re Turner, 207 B.R. 373, 375 (2d Cir.B.A.P.1997); Cohen v. Met. Life Ins. Co., No. 00 Civ. 6112(LTS)(FM), 2008 WL 1826484, at *1 (S.D.N.Y. Apr. 22, 2008). The Second Circuit has also clarified that the requisite degree of likelihood of success on the merits varies according to the court’s assess ment of the other factors: “The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiff will suffer absent the stay. Simply stated, more of one excuses less of the other.” Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir.2002) (quotation marks and alteration omitted). Although CIGNA has not argued, nor could it credibly claim, that it would suffer an irreparable injury if the stay is denied, neither will Plaintiffs suffer a substantial injury if the stay is granted. The Court does not discern a public interest in granting or denying a temporary stay of the remedies in this opinion until they are reviewed by the Second Circuit; indeed, the only public interest the Court sees here, and it is a strong one, is for clarity in this muddled yet extremely important area of the law. Finally, and as repeatedly noted above and in the Liability Decision, the lack of clear guidance in the law and the unusual factual circumstances present in this case have convinced the Court that the outcome of any appeal is far from certain, and the Court believes a stay is therefore both appropriate and necessary. Thus, the Court hereby ORDERS that all of the remedies laid out in this opinion are" }, { "docid": "20606692", "title": "", "text": "a plaintiff must establish a substantial likelihood of success on the merits, that the plaintiff will suffer irreparable injury if the injunction does not issue, that the threatened injury outweighs whatever damage the proposed injunction may cause a defendant, and that the injunction will not be adverse to the public interest. See, e.g., Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir.2005); Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc). For the reasons set out above, the plaintiffs are likely to prevail on the merits. The plaintiffs also meet the other requirements for a preliminary injunction. The plaintiffs will suffer irreparable harm if an injunction is not issued. Indeed, the ongoing unconstitutional denial of a fundamental right almost always constitutes irreparable harm. The threatened injury to the plaintiffs outweighs whatever damage the proposed injunction may cause the defendants, that is, the state. And a preliminary injunction will not be adverse to the public interest. Vindicating constitutional rights almost always serves the public interest. This order requires the plaintiffs’ to give security for costs in a modest amount. Any party may move at any time to adjust the amount of security. VI. Stay A four-part test governs stays pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). See also Venus Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir.2000) (applying the same test). The four-part test closely tracks the four-part test governing issuance-of a preliminary injunction. Because the governing four-part tests are so similar, it is a rare case in which a preliminary injunction is properly stayed pending appeal. This is the rare case. As set out above, the state’s interest in refusing to allow or recognize" }, { "docid": "16479928", "title": "", "text": "appeal. This refusal had the effect of denying an injunction by denying the Claimants’ request to enjoin a substantial distribution from the Trust balance while proceedings concerning rights to that balance continued. If the proposed interim distribution from the Trust is not stayed, and if the Claimants are ultimately successful in proving their claims allowable under the Plan, the balance of Trust Account A will be so depleted that the Claimants’ will have little hope of receiving the same payment as other initially allowed present claimants. This possibility provides the necessary risk of serious consequence required under Carson, and thus we take jurisdiction under § 1292(a)(1). III. Merits of the Stay Having asserted jurisdiction, we now examine the propriety of the district court’s September 26,1996 order denying the Claimants’ stay motion. In considering whether to grant a stay pending appeal under Bankruptcy Rule 8005, courts consider the following four factors: 1) whether the appellant is likely to succeed on the merits of the appeal; 2) whether the appellant will suffer irreparable injury absent a stay; 3) whether a stay would substantially harm other parties in the litigation; and 4) whether a stay is in the public interest. In re 203 North LaSalle Street Partnership, 190 B.R. 595, 596 (N.D.Ill.1995); In re Maurice, 167 B.R. at 138. These factors mirror the factors to be considered in ruling on an application for preliminary injunction, in which context we have more fully explained how the factors are to be applied and balanced. See Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984). Applicants for preliminary relief have threshold burdens to demonstrate the first two factors: they must show that they have some likelihood of success on the merits and that they will suffer irreparable harm if the requested relief is denied. Id. at 386-87. If the movant can make these threshold showings, the court then moves on to balance the relative harms considering all four factors using a “sliding scale” approach. Id. However, if the movant does not make the requisite showings on either of these two factors, the court’s" }, { "docid": "23261892", "title": "", "text": "and by Judge Nelson with which the plaintiff took issue were clearly within their jurisdiction and, therefore, both judges were absolutely immune from liability. Defendant Poppy also was immune for his alleged involvement in a conspiracy to set a trial date and for allegedly ignoring evidence. Public prosecutors are entitled to qualified immunity when performing administrative or investigatory duties and absolute immunity when performing a quasi-judicial role. Coleman v. Frantz, 754 F.2d 719, 728 n. 9 (7th Cir. 1985). Thus, Poppy was absolutely immune for allegedly failing to examine evidence. Glick could have overcome Poppy’s qualified immunity for any alleged impropriety relating to setting the trial date only by demonstrating that any constitutional rights that were violated “were clearly established at the time of the conduct at issue,” which plaintiff plainly failed to do. Davis v. Scherer, — U.S.-, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984). Finally, police officer Koenig was entitled to qualified immunity for his actions in arresting Glick for speeding, Silverman v. Ballan-tine, 694 F.2d 1091 (7th Cir.1982), and to absolute immunity for his participation as a witness in the hearing before Judge Nelson, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Glick failed to overcome Koenig’s qualified immunity by demonstrating that Koenig violated clearly established constitutional rights. Accordingly, both the original and amended complaint failed to state a cognizable claim and, therefore, the original complaint was properly dismissed and the amendment was properly disallowed. The district court denied Glick’s motion for a stay of further proceedings pending a decision from this court on his appeal of the May 29th order denying his motions for a default judgment and summary judgment. See Fed.R.App.P. 8(a). The factors to be considered in a request for a stay pending appeal are (1) whether appellant has made a showing of likelihood of success on appeal, (2) whether appellant has demonstrated a likelihood of irreparable injury absent a stay, (3) whether a stay would substantially harm other parties to the litigation, and (4) where the public interest lies. Adams v. Walker, 488 F.2d 1064, 1065 (7th" }, { "docid": "15507727", "title": "", "text": "a notice of appeal by that date; (2) If the DOED notices an appeal, the DOED must petition the Court of Appeals for expedited consideration of the appeal within ten days of that filing; and (3) Regardless of whether expedited consideration of the appeal is granted, the DOED must not seek any extensions of the briefing schedule on appeal. See PL’s Resp. at 1-2. On October 18, 2007, the DOED filed a[38] Reply suggesting that all of PFAWF’s proposed conditions were unreasonable. Def.’s Reply at 1-2. II. LEGAL STANDARD A Party who moves for a stay pending appeal bears the burden of showing the balance of four factors weigh in-favor of the stay: (1) the likelihood that it will prevail on the merits of the apipeal; (2) the likelihood that it will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting a stay. Cuomo v. United States Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C.Cir.1985). A party does not necessarily have to make a strong showing with respect to the first factor (likelihood of success on the merits) if a strong showing is made as to the second factor (likelihood of irreparable harm). Id. (“[probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa”). Ultimately, a court must weigh the factors depending on the circumstances of the particular case. See, e.g., Ctr. for Int’l Envtl. Law v. Office of the United States Trade Representative, 240 F.Supp.2d 21, 23 (D.D.C.2003) (“The remaining two factors' — potential harm to plaintiffs and other individuals or to the public interest if a stay is granted— argue against a stay but ultimately do not outweigh defendants’ showing of a substantial .case on the merits and irreparable harm from disclosure”). III. DISCUSSION The Parties in the instant proceeding agree that a stay is necessary, to avoid irreparable injury to the DOED by having to release documents prior" }, { "docid": "15417130", "title": "", "text": "held that orders confirming a plan of reorganization or denying relief from an automatic stay are final. 2. Standard of Review A district court functions as an appellate court in reviewing judgments rendered by bankruptcy courts. Findings of fact are reviewed for clear error. A finding of fact is clearly erroneous if the court is “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” A bankruptcy court’s conclusions of law, by contrast, are reviewed de novo. B. Stay Pending Appeal Rule 8005 of the Federal Rules of Bankruptcy Procedure governs the procedure for seeking a stay pending an appeal to the district court of a bankruptcy court’s order. “The Rule does not articulate, however, the standard that governs such motions.” Courts within the Second Circuit have followed the same standard used for stays of district court orders pending appeals to the circuit court under Federal Rule of Appellate Procedure 8(a)(1)(A) (“Rule 8A”), in large part because Bankruptcy Rule 8005 is directly adapted from Rule 8A. The decision as to whether to issue a stay of an order pending appeal lies within the sound discretion of the district court. “[F]our factors are considered” in exercising that discretion: “(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected.” A number of lower courts within the Second Circuit have concluded that the failure of the movant to satisfy any one of the four factors on a motion for a stay-pending appeal of a bankruptcy court order “dooms the motion.” However, the Second Circuit has never articulated such a rigid rule of law. To the contrary, the Second Circuit has consistently treated the inquiry of whether to grant a stay pending appeal as a balancing of factors that must be weighed. This rift was recently noted, but not decided, by a district court in this circuit. I" }, { "docid": "8433928", "title": "", "text": "expedite the appeal, which the Second Circuit granted on November 30. In deciding whether to grant a stay pending appeal, courts consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” ICE argues that if its motion for a stay were denied and it were required to produce the Memorandum at issue, the document would enter the public record and its appeal would be moot. Mooting of appellate rights, it argues, is irreparable harm. It points, among other cases, to National Council of La Raza v. Department of Justice, where the Second Circuit stayed the district court’s order to disclose a document pursuant to FOIA pending appeal. Plaintiffs point out that a stay “is not a matter of right, even if irreparable injury might otherwise result,” that the defendants have failed to show a likelihood of success on the merits, that the plaintiffs and the public will be harmed substantially by a further delay in the production of the Memorandum, and that the defendants will only be minimally harmed by a disclosure of the document. In sum, plaintiffs argue that a proper balancing of the four factors favors rejecting defendants’ motion. The harm to plaintiffs and the public from a stay pending the appeal has been mitigated because the Second Circuit granted plaintiffs’ motion to expedite the appeal and ordered that it shall be heard as early as the week of February 12, 2012, subject to the approval of the presiding judge. Because that harm has been minimized, and in order to preserve ICE’s right to the appeal, defendants’ motion is granted. In my October 24 order, I held that the October 2 Memorandum was not exempt from production under FOIA based on the attorney-client privilege for two independent reasons; First, because defendants failed to establish that confidentiality of the document had been maintained, given the" }, { "docid": "9241908", "title": "", "text": "discovery is outside the scope permitted by Rule 26(b)(1). Id. 26(b)(2)(C) (emphasis added). D. Request for Stay Pending Appeal A party that moves for a stay pending appeal bears the burden of showing that the balance of four factors weighs in favor of the stay: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Cuomo v. U.S. Nuclear Regulatory Comm'n , 772 F.2d 972, 974 (D.C. Cir. 1985) (per curiam); see also id. at 978 (\"On a motion for stay, it is the movant's obligation to justify the court's exercise of such an extraordinary remedy.\"); Nat. Res. Def. Council v. EPA , 489 F.3d 1250, 1263-64 (D.C. Cir. 2007) (Randolph, J., concurring) (citing Cuomo as demonstrative of the Court of Appeals' \"long-standing principles governing stays\"). A party does not necessarily have to make a strong showing with respect to the first factor (likelihood of success on the merits) if a strong showing is made as to the second factor (likelihood of irreparable harm). Cuomo , 772 F.2d at 974 (\"Probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa .\"). Ultimately, a court must weigh the factors depending on the circumstances of the particular case. See, e.g., Ctr. for Int'l Envtl. Law v. Office of the U.S. Trade Representative , 240 F.Supp.2d 21, 23 (D.D.C. 2003) (\"The remaining two factors-potential harm to plaintiffs and other individuals or to the public interest if a stay is granted-argue against a stay but ultimately do not outweigh defendants' showing of a substantial case on the merits and irreparable harm from disclosure.\"). III. DISCUSSION A. Motion to Reconsider This Court's December 22, 2017, Order 1. Rule 54(b) Standard The preliminary injunction granted in this case did not resolve" }, { "docid": "5499905", "title": "", "text": "and permanent injunctive relief and for a stay of execution, and also denied O’Bryan’s application for temporary relief pending appeal. Pending before us in connection with the 1983 Complaint is a motion to enjoin the 1983 defendants from subjecting O’Bryan to lethal injection with drugs not approved for that purpose by the FDA during the pendency of O’Bryan’s appeal from the district court’s judgment. We turn first to the 1983 Complaint. In general, a court, in deciding whether to issue a stay, must consider: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (Ruiz II) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (Ruiz I)). While “the movant need not always show a ‘probability’ of success on the merits,” he must “present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities, [i.e. the other three factors] weighs heavily in the favor of granting the stay.” Ruiz II, 666 F.2d at 856 (emphasis in original) (quoting Ruiz I, 650 F.2d at 565). Insofar as the likelihood of success on the merits is concerned, we do not think that O’Bryan has made the showing required for a stay. We begin by noting that the mandate in Chaney v. Heckler, supra, has not issued, having been stayed by Chief Justice Burger pending the government’s application for a writ of certiorari in the Supreme Court. We note also that neither this court nor any party to this case is bound by the decision of the Court of Appeals for the District of Columbia Circuit in Chaney. On the probable merits of O’Bryan’s claim of a violation of the Act, we think that, for the reasons set forth in Judge Scalia’s dissenting opinion" }, { "docid": "22159969", "title": "", "text": "oppositions or responses are denied. In deciding whether to grant this motion, we must apply the four factors that always guide our discretion to issue a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987); see E.I. DuPont de Nemours & Co. v. Phillips Petroleum, 835 F.2d 277, 278, 5 USPQ2d 1109, 1110 (Fed.Cir.1987). Each factor, however, need not be given equal weight. See Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir.1979) (granting stay pending appeal). Also, likelihood of success in the appeal is not a rigid concept. See Washington Metro. Area Transit Comm’n v. Holiday Tours, 559 F.2d 841, 844 (D.C.Cir.1977) (In ruling on a motion to vacate stay: When there “is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical proba bility of success” then “[a]n order maintaining the status quo is appropriate”). When harm to applicant is great enough, a court will not require “a strong showing” that applicant is “likely to succeed on the merits.” Hilton, 481 U.S. at 776, 107 S.Ct. at 2119. Indeed, in Hilton the Supreme Court acknowledged, “the traditional stay factors contemplate individualized judgments in each ease, the formula cannot be reduced to a set of rigid rules.” Id. at 777, 107 S.Ct. at 2119. The Court specifically discussed, in the context of a habeas corpus petition, the “strong likelihood of success” factor and indicated a stay was appropriate: “[wjhere [movant] establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits,” provided the other factors militate in movant’s favor. Id. at 778, 107 S.Ct. at 2120 (emphasis added). The Second Circuit, in a" }, { "docid": "14915632", "title": "", "text": "appropriate, a court must evaluate the following factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). “[WJhere the order stayed involves a preliminary injunction ... it is logically inconsistent, and in fact a fatal flaw, to subsequently find no irreparable nor even serious harm to the plaintiffs pending appeal.” Id. at 234-35. The Second Circuit has therefore concluded that, “the grant of a stay of a preliminary injunction pending appeal will almost always be logically inconsistent with a prior finding of irreparable harm that is imminent as required to sustain the same preliminary injunction.” Id. at 235. An exception to this rule is the grant of a stay pending an expedited appeal. It is appropriate for a district court to grant “a brief stay of a preliminary injunction in an appropriate case in order to permit the Court of Appeals an opportunity to consider an application for a stay pending an expedited appeal.” Id. at 235. The instant action presents such an appropriate case. The court has concluded that the plaintiffs have demonstrated a substantial likelihood of success on the merits and irreparable harm. The court therefore cannot find that the defendants, the stay applicants, can demonstrate a likelihood of success on the merits for the purposes of their stay application. However, in this case, the defendants would also be irreparably harmed should the preliminary injunction enter and the circuit court later reverse this court. Once revealed, Doe cannot be made anonymous again. Furthermore, colorable claims exist that the public interest lies in favor of granting the stay (if this court is in error), as well as in denying it (if this court is correct in its judgment). The court" }, { "docid": "23261893", "title": "", "text": "immunity for his participation as a witness in the hearing before Judge Nelson, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Glick failed to overcome Koenig’s qualified immunity by demonstrating that Koenig violated clearly established constitutional rights. Accordingly, both the original and amended complaint failed to state a cognizable claim and, therefore, the original complaint was properly dismissed and the amendment was properly disallowed. The district court denied Glick’s motion for a stay of further proceedings pending a decision from this court on his appeal of the May 29th order denying his motions for a default judgment and summary judgment. See Fed.R.App.P. 8(a). The factors to be considered in a request for a stay pending appeal are (1) whether appellant has made a showing of likelihood of success on appeal, (2) whether appellant has demonstrated a likelihood of irreparable injury absent a stay, (3) whether a stay would substantially harm other parties to the litigation, and (4) where the public interest lies. Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir.1973). The district court weighed these factors and properly denied the stay. We do not find the denial of the stay under these circumstances to be an abuse of discretion. The district court also ordered plaintiff to serve on the opposing parties certain documents that had been served with the court but that had not been served on defendants. Rule 5(a) of the Federal Rules of Civil Procedure provides (with a few exceptions that are not relevant here) that every pleading subse quent to the original complaint, every paper relating to discovery, every written motion other than one which may be heard ex parte, and every written notice and similar paper shall be served upon each of the parties. The defendants were entitled to the documents requested and, accordingly, the district court’s order granting defendants’ request was proper. In its order of June 19, 1984, the district court also granted Judge Nelson’s request for attorneys’ fees and then assessed attorneys’ fees against the plaintiff for defendants Koenig and Poppy. In the district court’s opinion, plaintiff" }, { "docid": "10213536", "title": "", "text": "Part IV infra) to enter a stay of the bankruptcy court’s Super Priority Financing Order pending appeal and requiring the district court to hold a prompt hearing on the merits of that appeal. II. In its petition for writ of mandamus, First South argues that no other avenue of appeal is available to it and that the harm to First South would be irreparable if a stay pending appeal is not entered. First South contends that, without the issuance of the requested relief, it would lose its ability to prosecute an appeal to the district court because, under 11 U.S.C. § 364(e), such an appeal might be rendered moot. Moreover, argues First South, based on the applicable legal standards, the district court, and the bankruptcy court before that, abused their discretion in denying its motion for a stay pending appeal. First South points to the criteria applied to determine whether a stay pending appeal should issue: (1) Whether the movant has made a showing of likelihood of success on the merits; (2) Whether the movant has made a showing of irreparable injury if the stay is not granted; (3) Whether the granting of the stay would substantially harm the other parties; and (4)Whether the granting of the stay would serve the public interest. See, e.g., Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (“Ruiz IP’). Further, First South notes that this court has recognized that “the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A Jun. 1981) (“Ruiz I”). First South then undertakes to show that, in light of those criteria, the denial of a stay pending appeal constitutes an abuse of discretion. With respect to its “likelihood of success on the merits,” First South notes the requirements of section 364(d)(1) — that the trustee is unable to obtain credit" }, { "docid": "7784321", "title": "", "text": "BATCo had “knowledge and possession” of the Foyle Memorandum “by at least February of 2002,” BATCo was required under Federal Rule of Civil Procedure 26(e), to “identify and/or designate the document” as privileged at that time. Philip Morris, No. 99-2496, slip op. at 4 (D.D.C. July 2, 2002) (memorandum opinion accompanying order). Thus, the court concluded that BATCo’s failure to list the memo on the privilege log waived BATCo’s attorney-client privilege claim. Id. at 4-5. The court did not further address BATCo’s objections. BATCo requested that the district court stay its orders pending appeal. On July 10, 2002, the district court denied the motion for stay, reasoning that BATCo had not established appellate jurisdiction nor shown that it was likely to prevail on its challenge to the waiver ruling. Philip Morris, No. 99-2496, slip op. (D.D.C. July 10, 2002). The court also noted that BAT-Co would not suffer irreparable harm absent a stay, particularly given that many portions of the Foyle Memorandum have already been made public in McCabe. Id. at 2. By contrast, the district court found that a stay would substantially harm the government and undermine the public interest by jeopardizing the “extremely demanding” discovery schedule and July 15, 2003 trial date set by the court. Id. at 2-4. BATCo timely filed this appeal and sought an emergency stay pending expedited review, claiming that the district court should have ruled on its pending objections to producing the Foyle Memorandum, and at that time, given BATCo a chance to log the memo. II. Analysis In seeking a stay pending appeal, BATCo must show (1) that it has a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the stay is denied; (8) that issuance of the stay will not cause substantial harm to other parties; and (4) that the public interest will be served by issuance of the stay. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). We first consider our jurisdiction over BATCo’s appeal and then address, in turn, the requirements for an emergency stay. A." }, { "docid": "20611521", "title": "", "text": "stayed pending appeal. 11 U.S.C. § 363(m). In a one-paragraph order, the Bankruptcy Court denied IDEA’S request. With its options dwindling and time winding down, IDEA filed an emergency motion before the District Court to stay the Bankruptcy Court’s sale order. E. The District Court Denies IDEA’S Stay Request In considering whether to grant a stay pending appeal, courts consider the following four factors: (1) whether the appellant has made a strong showing of the likelihood of success on the merits; (2) will the appellant suffer irreparable injury absent a stay; (3) would a stay substantially harm other parties with an interest in the litigation; and (4) whether a stay is in the public interest. See, e.g., Republic of Phil. v. Westinghouse Electric Corp., 949 F.2d 653, 658 (3d Cir.1991). Because IDEA is the only party before us, we limit our examination of the District Court’s ruling to its treatment of IDEA’S objections. 1. Likelihood of Success On the first prong, the District Court maintained that IDEA needed to show that it had a “substantial” or “strong” case on appeal. In re Revel AC, Inc., 525 B.R. 12, 24 (D.N.J.2015) (internal quotation marks omitted). Addressing § 365(h) first, the Court noted that, because the legal issue was the subject of an “undisputed split of authority,” IDEA at most showed a possibility and not a likelihood (which we understood the Court to mean more likely than not) of success. Id. (internal quotation marks omitted). It next addressed whether the Bankruptcy Court clearly erred in finding that Revel put forth enough evidence to show that a bona fide dispute existed as to the validity of IDEA’S lease. See id. at 26. Despite the Bankruptcy Court’s failure to mention it, the District Court emphasized that “IDEA specifically sought a declaratory judgment concerning the .nature of [its] agreement with [Revel],” id. at 29, even though, as IDEA asserted, its lawsuit “principally concerned [its] request for an energy easement, rather than an effort ... to challenge the characterization of its Agreement,” id. at 29 n. 14. In the District Court’s view, the pending litigation “arguably." }, { "docid": "15417131", "title": "", "text": "whether to issue a stay of an order pending appeal lies within the sound discretion of the district court. “[F]our factors are considered” in exercising that discretion: “(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected.” A number of lower courts within the Second Circuit have concluded that the failure of the movant to satisfy any one of the four factors on a motion for a stay-pending appeal of a bankruptcy court order “dooms the motion.” However, the Second Circuit has never articulated such a rigid rule of law. To the contrary, the Second Circuit has consistently treated the inquiry of whether to grant a stay pending appeal as a balancing of factors that must be weighed. This rift was recently noted, but not decided, by a district court in this circuit. I will follow the Second Circuit’s practice of weighing the factors. 1. Irreparable Harm “A showing of probable irreparable harm is the principal prerequisite for the issuance of a [Rule 8005] stay.” Irreparable harm must be “neither remote nor speculative, but actual and imminent.” Courts are divided, and the Second Circuit has not yet spoken, on the issue of whether the risk that an appeal may become moot in the absence of a stay pending appeal satisfies the irreparable injury requirement. A majority of courts have held that a risk of mootness, standing alone, does not constitute irreparable harm. However, several courts, including ones within this Circuit, have held to the contrary. While Appellees have strained to distinguish each of these cases, the fact is that loss of appellate rights is a “quintessential form of prejudice.” Thus, where the denial of a stay pending appeal risks mooting any appeal of significant claims of error, the irreparable harm requirement is satisfied. Consequently, in evaluating the irreparable harm element, it is necessary to analyze the risk that an" }, { "docid": "7144225", "title": "", "text": "IS ORDERED that appellant’s motion for injunction pending appeal is GRANTED. IT IS FURTHER ORDERED that appellant’s alternative motion to expedite the appeal is DENIED. Laurenzo v. Mississippi High School Activities Association, Inc., No. 80-3227 (5th Cir. March 31, 1980). The order further indicates that the grant of the injunction pending appeal was made by a two-to-one decision. . Rule 8 explicitly gives the court of appeals the power to grant a stay or an injunction pending an appeal. Fed.R.App.P. 8. . In Florida Businessmen, this court had directed a limited remand to the district court to reconsider its earlier denial of a stay and injunction pending appeal. After the district court again denied the stay and injunction, this court reversed the district court and granted the stay. Without citation to statutory or case authority, the panel in a two-to-one decision stated: We must consider four factors: (1) the likelihood that the moving party will ultimately prevail on the merits of the appeal; (2) the extent to which the moving party would be irreparably harmed by denial of the stay; (3) the potential harm to opposing parties if the stay is issued; and (4) the public interest. Florida Businessmen, 648 F.2d at 957. The dissenting judge contended that the correct formula for determining whether to grant the requested relief required a finding: (1) that a substantial likelihood exists that the district court abused its discretion in failing to grant relief; (2) that the appellant faces a substantial threat of irreparable injury; (3) that the threatened injury to the appellant outweighs any harm the temporary relief would impose on the appellee; and (4) that the relief would not dis-serve the public interest. Citing MacBride v. Askew, 541 F.2d 465, 467 (5th Cir.1976). Florida Businessmen, 648 F.2d at 948 (Kravitch, J., dissenting). . A later panel in Ruiz II (Ruiz v. Estelle, 666 F.2d 854 (5th Cir. 1982)) emphasized that we had not eliminated likelihood of success as a prerequisite in the usual case and that in order to issue a stay absent a finding that the movant was likely to succeed" }, { "docid": "14915631", "title": "", "text": "to serve a compelling government interest. The court concludes that the application of § 2709(c) to the plaintiffs in this case on the topic of Doe’s identity does not pass strict scrutiny. The defendants have failed to show a compelling state interest that is served by gagging the plaintiffs with regard to Doe’s identity. If the government’s interest is more broadly defined as preventing an unknown subject of the government’s investigation from learning of the government’s investigation, which would support a finding of a compelling interest, the gag provision as to Doe’s identity is not narrowly tailored to serve that interest. Because § 2709(c) as applied cannot survive strict scrutiny, the plaintiffs have shown a substantial likelihood of success on the merits, as well as irreparable harm. Therefore, the court grants their motion to enjoin enforcement of § 2709(c) against them with regard to Doe’s identity. V. STAY The defendants requested a stay in the event the court granted the Motion for Preliminary Injunction. “To determine whether a stay of an order pending appeal is appropriate, a court must evaluate the following factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). “[WJhere the order stayed involves a preliminary injunction ... it is logically inconsistent, and in fact a fatal flaw, to subsequently find no irreparable nor even serious harm to the plaintiffs pending appeal.” Id. at 234-35. The Second Circuit has therefore concluded that, “the grant of a stay of a preliminary injunction pending appeal will almost always be logically inconsistent with a prior finding of irreparable harm that is imminent as required to sustain the same preliminary injunction.” Id. at 235. An exception to this rule is the grant" } ]

[ { "docid": "15226905", "title": "", "text": "meet the conventional test for a final judgment because it does not terminate the entire bankruptcy case. See In re Brissette, 561 F.2d 779 (9th Cir.1977). Recently, however, we adopted a test that emphasizes the need for immediate review, rather than whether the order is technically interlocutory, in determining what is appealable as a final judgment in bankruptcy proceedings. In re Mason, 709 F.2d 1313 (9th Cir.1983). Under Mason the order in the present case is appealable. In Mason the debtor appealed the district court’s refusal to set aside the order for relief on an involuntary petition for bankruptcy. The order for relief was technically interlocutory because it did not conclude the bankruptcy case. Id. at 1316. The court noted, however, that bankruptcy proceedings are unique and that the rules of finality developed for conventional litigation should not be applied mechanically. Those orders that “ ‘may determine and seriously affect substantive rights’ and ‘cause irreparable harm to the losing party if he had to wait to the end of the bankruptcy case’ ” are immediately appealable. Id. at 1316-17. The court concluded that an order for relief in an involuntary bankruptcy case is appealable under this test. An order for relief effectively divests the debtor of his assets, creating an estate controlled by the bankruptcy court. In a Chapter 7 case the trustee is obligated to gather the assets of the estate, liquidate them, and to the extent possible satisfy creditors’ claims.... During the administration of the estate the debtor’s rights are limited. On entry of the order for relief he loses control of his assets, which may include a business. See 11 U.S.C. § 303(f). Once property of the estate is liquidated there appears to be no way the debtor can force bona fide purchasers to return the assets. [Citations omitted.] A debtor may possibly attack the propriety of every sale by appeal, but to effectively do so he must seek to stay the sale. Id. at 1317. We previously held that a similar need exists for immediate review of orders granting or denying exemptions. In re Brissette, 561" } ]

[ { "docid": "11690628", "title": "", "text": "541(d) of the Bankruptcy Code, 11 U.S.C. § 541(d), (Supp. III 1985) dictates the outcome of this case, arguing that Woodson, at most, holds legal title, and accordingly, that the equitable title of the permanent investors is excluded from the bankrupt’s estate by the terms of § 541(d). Appellees assume too much. Whether the permanent investors have equitable title turns on whether they are owners of participation interests. If they have no ownership interests but rather are lenders only, § 541(d) does not apply- A typical participation transaction involves a lead lender who retains some interest in the transaction, retains possession of the note, and retains the power to enforce against the mortgagor. Battles rage over whether such arrangements are best characterized as establishing creditor-debtor relationships between the participants and the lead lender, or whether they involve trust relationships or are present assignments coupled with an agency permitting the lead lender to collect. See L. Cherkis, Collier Real Estate Transactions and the Bankruptcy Code 114.05 (1984); Drake & Weems, Mortgage Loan Participations: The Trustee’s Attack 52 Amer. Bankr.L.J. 23 (1978); MacDonald, Loan Participations as Enforceable Property Rights in Bankruptcy — A Reply to the Trustee’s Attack 53 Am.Bankr.L.J. 35 (1979). The significance of the trust or ownership characterization is that it effectively removes the res from the bankrupt estate. “The arguments for the beneficiary-trustee characterization of the ... relationship appear stronger than the arguments favoring the creditor-debtor relationship. A participant’s decision to invest in a given loan transaction will ordinarily be based upon its determination of (a) the creditworthiness of the underlying borrower, (b) the quality of the collateral, (c) the terms of the underlying loan, (d) the financial terms of the proposed participation arrangement, (e) the recommendation of the transaction by the lead lender and (f) the experience and reputation of the lead lender.” L. Cherkis, supra 4.05[3]. The transaction in this case is different from the typical participation transaction in two aspects. First, Woodson did not retain a percentage participation as lead lender in any of the loans. Second and most significantly, Woodson relieved the permanent investors of" }, { "docid": "11690619", "title": "", "text": "in the county recorder’s office. Woodson kept possession of the promissory notes until paid or discharged by foreclosure. They were not endorsed by WIL to either Wood-son as attorney-in-fact for the investors, or to the investors. Woodson purchased an insurance policy from Fireman’s Fund whereby it insured Woodson’s contractual obligations to its investors. The agreement between the permanent investors and Woodson provided that the permanent investors receive a guaranteed rate of interest on each investment. The rate differed from agreement to agreement, the spread between that which the borrower paid Woodson and that which Woodson paid to the investor ranging between 1% and 6%. Woodson guaranteed monthly payments to each investor regardless of whether borrowers made their monthly payments. Woodson also agreed to advance sums to cover senior encumbrances, taxes, insurance, and liens. In the event of default, Woodson negotiated with the delinquent borrower to work out the default. Woodson, however, did not consult the investors during this process nor obtain their approval of any new or modified terms. If a loan was foreclosed, the investors had an option either to receive payment in full (unpaid principal balance plus accrued interest) from Wood-son or to reimburse Woodson for the costs of foreclosure and to take title to the property at the time of sale. No investor ever exercised this latter option. Upon WIL’s acquisition of property through foreclosure, it immediately deeded the property to Woodson by grant deed in exchange for a promissory note in the full amount of the bid price at foreclosure. Woodson’s trustee in bankruptcy asserts that the loans are property of the bankrupt estate, and that he is entitled to hold all collections on the loans until the investors’ rights are determined in the bankruptcy proceedings. Fireman’s Fund and four plaintiffs brought suit and filed a motion for partial summary judgment seeking a declaratory judgment that the notes and deeds of trust are not property of the bankrupt estate but rather the property of the investors. Appellants, the trustee and creditors, responded with cross-motions for summary judgment. The bankruptcy court determined the interests of the permanent" }, { "docid": "11690631", "title": "", "text": "were disguised loans rather than sales of participation interests. The court focused on the fact that the bank had no risk of loss. A “participant” normally assumes the same risks as the person selling the participation. Id. at 282. See also In re Executive Growth Investments, Inc., 40 B.R. 417 (Bankr.C.D.Cal.1984) (finding that whether the buyer bore the risk of loss in the event of nonpayment was the dispositive issue in determining whether a transaction transferred ownership of a fractional interest in a promissory note); In re Columbia Pacific Mortgage, Inc., 20 B.R. 259 (Bankr.W.D.Wash.1981) (finding that there was a valid sale of a participation interest in a transaction where the seller and purchaser shared ratably in the expense and income of disposing of property upon default); In re Alda Commercial Corp., 327 F.Supp. 1315 (S.D.N.Y.1971) (finding that arrangement whereby “joint venturers” provided funds to debtor was a loan rather than a joint venture because there was no sharing in the profits of the debtor nor did the petitioner play any part in the management of accounts). In the case before us, permanent investors were not subject to any risk when they transferred funds to Woodson. They were paid interest monthly regardless of whether the original borrower paid Woodson. In the event of default, Woodson paid the investor the interest and the balance principal owed on the investor’s “participation.” The insurance contract with Fireman’s Fund made lending money to (or investing money with) Woodson a risk-free investment. We can conceptualize the transaction as one in which Fireman’s Fund served the function of an FDIC and Woodson the function of a borrowing bank. Woodson did not merely guarantee a certain return, but effectively guaranteed against all risk of loss. This is entirely different from participation transactions in which participants share in risk and must rely on the creditworthiness of the borrower and the collateral. The rate of interest which Woodson paid the permanent investors also suggests that the relationship was that of debtor-creditor. If the investors had purchased participation interests, the rate of interest which they received from Woodson normally would" }, { "docid": "11690624", "title": "", "text": "the partial summary judgment in this case does not determine the interests of the revolving investors, we must decide whether the interests of the two types of investors are intertwined in such a way that resolution of the rights of the permanent investors affects or is affected by resolution of the claims of the revolving investors. On some loans, the funds of the revolving investors were used to supplement the permanent investors’ funds. For example, if Woodson could fund only 90% of a particular loan with funds from permanent investors, the other 10% would be funded by the revolving investors. Thus the revolving investors claim a partial interest in some of the same notes and deeds of trust in which permanent investors claim a partial interest. If the revolving investors ultimately are held to be general creditors, to the extent assets are removed from the estate, they may suffer. Rather than looking to the financial consequences that the decision may have on the revolving investors, however, we must determine whether the discrete legal issue of whether the permanent investors loaned money against the security of the deeds of trust or purchased participations in the loans can be decided separately from the determination of the nature of the interests of the revolving investors. The transactions between the revolving investors and Woodson and the permanent investors and Woodson were very different in character. Whereas each permanent investor selected the specific loan or loans in which to invest and furnished funds for a specific percentage participation in a specific loan, the revolving investors each deposited $100,000 into a passbook savings account over which Woodson had a power of attorney and from which it could withdraw funds at its discretion. Permanent investors had to wait until the loan matured before repayment to them; revolving investors, on the other hand, could withdraw their funds upon giving Woodson 30 days notice. The same rate of interest was paid to all revolving investors and was tied to the Bank of America’s rate for certificates of deposit or Woodson’s lending rate, whichever was greater, while the rate of" }, { "docid": "11422095", "title": "", "text": "the Hawkinsons, the Rattos were guaranteed that the funds they invested with Lendvest would be returned. Additionally, the Rattos and Lendvest entered into a “Contract Agreement” with Lendvest whereby Lendvest guaranteed that the Rattos would have no loss at all: Frank J. Ratto and Tosca M. Ratto are the Investors on that certain Second Note and Deed of Trust secured by the property commonly known as 1919 Valencia Street, Napa CA 94558. [Lend-vest] does hereby agree to buy back all or a part of this Note at no loss of principal or interest to Frank J. Ratto and Tosca M. Ratto. We agree with the bankruptcy court’s conclusion that the facts of this case parallel the facts of In re Woodson: In the case before us, permanent investors were not subject to any risk when they transferred funds to Woodson. They were paid monthly interest regardless of whether the original borrower paid Woodson. In the event of default, Woodson paid the investor the interest and the balance principal owed on the investor’s “participation.” ... Woodson did not merely guarantee a certain return, but effectively guaranteed against all risk of loss.... We conclude that the transactions with the permanent investors were loans. The permanent investors possessed none of the usual indicia of ownership. By contrast, Woodson retained all of the obligations of an owner and conducted itself throughout as owner. Simply calling transactions “sales” does not make them so. Woodson, 813 F.2d at 271-72. Accordingly, we affirm the decision of the bankruptcy court. V. CONCLUSION A transaction wherein investors transfer funds to a mortgage broker in return for 13.5% interest per annum, where the investors receive a guarantee from the mortgage broker for the full amount of the principal plus interest accrued and the mortgage broker assumes the risk is a loan and not a sale. The bankruptcy court correctly ruled that the nature of the transaction between the Rattos and Lendvest was a loan and not a sale. AFFIRMED. . The Chapter 11 petition was filed on June 24, 1988. . Charles E. Sims is the second Trustee in this" }, { "docid": "11690635", "title": "", "text": "powers of attorney to Woodson to act for and on their behalves in collecting loans and dealing with defaults. Woodson would use revolving funds both to fund entire loans and to \"fill out” loans which had been principally assigned to permanent investors. The assignments of deeds of trust and underlying notes were not recorded for revolving fund investments. The guaranteed rate of interest for revolving fund investments was a floating rate based on the greater of Bank of America's certificate of deposit rate or Wood-son’s lending rate. Revolving investors, unlike the permanent investors, did not have to wait until the loans matured but could withdraw their funds on 30 days notice. . Pursuant to a settlement, Fireman's Fund succeeded to the interests of approximately 1900 permanent and revolving investors. Not all investors, however, were covered by the settlement. . Although Fireman’s Fund’s complaint prayed for relief for both revolving and permanent investors, at oral argument in bankruptcy court Fireman’s Fund limited the relief sought to the permanent investors. . The ambiguity of the relationship of WIL and Woodson and the fact that WIL has legal title to the notes and deeds of trust may raise unresolved issues as to WIL’s interest that are not before us. . Section 541(d) of the Bankruptcy Code provides that: Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. . Our court recently decided In re Golden Plan of California, 812 F.2d 1088 (9th Cir.1987) (second amended opinion). The court held that the transactions were purchases and sales of notes and" }, { "docid": "11690625", "title": "", "text": "whether the permanent investors loaned money against the security of the deeds of trust or purchased participations in the loans can be decided separately from the determination of the nature of the interests of the revolving investors. The transactions between the revolving investors and Woodson and the permanent investors and Woodson were very different in character. Whereas each permanent investor selected the specific loan or loans in which to invest and furnished funds for a specific percentage participation in a specific loan, the revolving investors each deposited $100,000 into a passbook savings account over which Woodson had a power of attorney and from which it could withdraw funds at its discretion. Permanent investors had to wait until the loan matured before repayment to them; revolving investors, on the other hand, could withdraw their funds upon giving Woodson 30 days notice. The same rate of interest was paid to all revolving investors and was tied to the Bank of America’s rate for certificates of deposit or Woodson’s lending rate, whichever was greater, while the rate of interest paid permanent investors was tied to the specific loans in which they invested. These differences suggest that the issue of whether the permanent investors purchased participation interests or made loans to Woodson is discrete and unrelated to the determination of the nature of the revolving investors’ interests. The transactions of each group of investors are sufficiently distinct that deciding whether permanent investors purchased participation interests or lent Woodson money does not determine the characterization of the transaction between Woodson and the revolving investors or the nature of the interest which the revolving investors may have in the notes and deeds of trust. Determination of whether the permanent investors own the notes and mortgages or whether they are part of the bankrupt estate is obviously exceedingly important to the course of the future administration of the estate and the rights of general creditors. We conclude that this issue meets the Mason-Exennium test: it is distinct and conclusive in respect to individual parties (the permanent investors) and casts a shadow over further administration of the estate" }, { "docid": "11690634", "title": "", "text": "From the facts surrounding these transactions we conclude the bankruptcy court was clearly erroneous in finding them purchases and sales. We reverse and remand to the bankruptcy court to make such other determinations as may be required in light of our holding. . Although both the revolving and the permanent investors transferred funds to Woodson, the means by which they did so differed greatly. For the revolving investors, Woodson opened passbook savings accounts in each revolving fund investor’s name on which The Woodson Company was named as trustee and from which Woodson, under a limited power of attorney, could withdraw funds. Each investor deposited $100,000 to his account. The permanent investors, on the other hand, made checks payable to Woodson that were deposited in Woodson’s own account. Investors received in return various guarantees from Woodson and at some later time were assigned notes and deeds of trust by WIL. Permanent investors personally selected the loans in which they participated whereas Woodson determined how to use the revolving investors’ funds. Both permanent and revolving investors executed powers of attorney to Woodson to act for and on their behalves in collecting loans and dealing with defaults. Woodson would use revolving funds both to fund entire loans and to \"fill out” loans which had been principally assigned to permanent investors. The assignments of deeds of trust and underlying notes were not recorded for revolving fund investments. The guaranteed rate of interest for revolving fund investments was a floating rate based on the greater of Bank of America's certificate of deposit rate or Wood-son’s lending rate. Revolving investors, unlike the permanent investors, did not have to wait until the loans matured but could withdraw their funds on 30 days notice. . Pursuant to a settlement, Fireman's Fund succeeded to the interests of approximately 1900 permanent and revolving investors. Not all investors, however, were covered by the settlement. . Although Fireman’s Fund’s complaint prayed for relief for both revolving and permanent investors, at oral argument in bankruptcy court Fireman’s Fund limited the relief sought to the permanent investors. . The ambiguity of the relationship of" }, { "docid": "11690621", "title": "", "text": "investors, reserving its ruling in respect to the revolving investors. It held that the permanent investors’ claims were direct claims against the borrowers, not against the bankrupt estate and that the notes secured by the deeds of trust were owned by the investors, not the estate. The judgment required the trustee to pay all amounts received on the notes to those permanent investors whose notes and deeds of trust met the following requirements: (1) named WIL as payee and beneficiary; (2) were in Woodson’s possession; (3) were recorded (in the case of deeds of trust); and (4) were assigned from WIL by properly executed instruments. The district court affirmed the judgment of the bankruptcy court. 1. Jurisdiction We must determine first whether we have jurisdiction to hear this appeal. 28 U.S.C. § 158(d) (Supp. III 1985) provides jurisdiction to our court for appeals from all final decisions, judgments, orders, and decrees entered by district courts in appeals to them from bankruptcy courts. The bankruptcy court held that the interests of the permanent investors were not part of the bankrupt estate and that the notes, deeds of trust and their proceeds should be delivered to Fireman’s Fund; it reserved judgment, however, on the nature of the interests of revolving investors. As the interests of the revolving investors and other issues remain to be decided, we must determine whether the decision of the lower court is final within the meaning of § 158(d). The Supreme Court has adopted a practical rather than a technical construction of the requirement of “finality”. Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), (holding that the practical effects of marginally final orders must be taken into account in determining appealability). That a pragmatic approach to finality is necessary in bankruptcy. proceedings was recognized by this court in In re Mason, 709 F.2d 1313, 1318 (9th Cir.1983) where we found jurisdiction to hear the appeal of a denial of a motion to vacate an order for relief. In finding that such an order was final for purposes of" }, { "docid": "11690620", "title": "", "text": "investors had an option either to receive payment in full (unpaid principal balance plus accrued interest) from Wood-son or to reimburse Woodson for the costs of foreclosure and to take title to the property at the time of sale. No investor ever exercised this latter option. Upon WIL’s acquisition of property through foreclosure, it immediately deeded the property to Woodson by grant deed in exchange for a promissory note in the full amount of the bid price at foreclosure. Woodson’s trustee in bankruptcy asserts that the loans are property of the bankrupt estate, and that he is entitled to hold all collections on the loans until the investors’ rights are determined in the bankruptcy proceedings. Fireman’s Fund and four plaintiffs brought suit and filed a motion for partial summary judgment seeking a declaratory judgment that the notes and deeds of trust are not property of the bankrupt estate but rather the property of the investors. Appellants, the trustee and creditors, responded with cross-motions for summary judgment. The bankruptcy court determined the interests of the permanent investors, reserving its ruling in respect to the revolving investors. It held that the permanent investors’ claims were direct claims against the borrowers, not against the bankrupt estate and that the notes secured by the deeds of trust were owned by the investors, not the estate. The judgment required the trustee to pay all amounts received on the notes to those permanent investors whose notes and deeds of trust met the following requirements: (1) named WIL as payee and beneficiary; (2) were in Woodson’s possession; (3) were recorded (in the case of deeds of trust); and (4) were assigned from WIL by properly executed instruments. The district court affirmed the judgment of the bankruptcy court. 1. Jurisdiction We must determine first whether we have jurisdiction to hear this appeal. 28 U.S.C. § 158(d) (Supp. III 1985) provides jurisdiction to our court for appeals from all final decisions, judgments, orders, and decrees entered by district courts in appeals to them from bankruptcy courts. The bankruptcy court held that the interests of the permanent investors were not" }, { "docid": "11690626", "title": "", "text": "interest paid permanent investors was tied to the specific loans in which they invested. These differences suggest that the issue of whether the permanent investors purchased participation interests or made loans to Woodson is discrete and unrelated to the determination of the nature of the revolving investors’ interests. The transactions of each group of investors are sufficiently distinct that deciding whether permanent investors purchased participation interests or lent Woodson money does not determine the characterization of the transaction between Woodson and the revolving investors or the nature of the interest which the revolving investors may have in the notes and deeds of trust. Determination of whether the permanent investors own the notes and mortgages or whether they are part of the bankrupt estate is obviously exceedingly important to the course of the future administration of the estate and the rights of general creditors. We conclude that this issue meets the Mason-Exennium test: it is distinct and conclusive in respect to individual parties (the permanent investors) and casts a shadow over further administration of the estate until it is settled. We conclude the order is “final” and subject to review by this court. See In re White, 727 F.2d 884, 886 (9th Cir.1984) (determination that asset is property of estate or exempt is final and appeal-able). II. Standard of Review Because we are in as favorable a position as the district court to review the findings of the bankruptcy court, we review the district court's decision de novo. In re Herbert, 806 F.2d 889, 891 (9th Cir.1986); In re Jee, 799 F.2d 532, 534 (9th Cir.1986). Accordingly, we review the bankruptcy court’s findings of fact for clear error; we review its conclusions of law de novo. Id. III. Nature of the Transactions Appellee Fireman’s Fund characterizes the transactions between Woodson, WIL and the permanent investors as the purchase of participation interests, while the trustee insists the permanent investors simply made loans to Woodson. Whether the notes and deeds of trust are assets of the estate turns at least in part on the proper characterization of the transactions. Appellees suggest that section" }, { "docid": "11690627", "title": "", "text": "until it is settled. We conclude the order is “final” and subject to review by this court. See In re White, 727 F.2d 884, 886 (9th Cir.1984) (determination that asset is property of estate or exempt is final and appeal-able). II. Standard of Review Because we are in as favorable a position as the district court to review the findings of the bankruptcy court, we review the district court's decision de novo. In re Herbert, 806 F.2d 889, 891 (9th Cir.1986); In re Jee, 799 F.2d 532, 534 (9th Cir.1986). Accordingly, we review the bankruptcy court’s findings of fact for clear error; we review its conclusions of law de novo. Id. III. Nature of the Transactions Appellee Fireman’s Fund characterizes the transactions between Woodson, WIL and the permanent investors as the purchase of participation interests, while the trustee insists the permanent investors simply made loans to Woodson. Whether the notes and deeds of trust are assets of the estate turns at least in part on the proper characterization of the transactions. Appellees suggest that section 541(d) of the Bankruptcy Code, 11 U.S.C. § 541(d), (Supp. III 1985) dictates the outcome of this case, arguing that Woodson, at most, holds legal title, and accordingly, that the equitable title of the permanent investors is excluded from the bankrupt’s estate by the terms of § 541(d). Appellees assume too much. Whether the permanent investors have equitable title turns on whether they are owners of participation interests. If they have no ownership interests but rather are lenders only, § 541(d) does not apply- A typical participation transaction involves a lead lender who retains some interest in the transaction, retains possession of the note, and retains the power to enforce against the mortgagor. Battles rage over whether such arrangements are best characterized as establishing creditor-debtor relationships between the participants and the lead lender, or whether they involve trust relationships or are present assignments coupled with an agency permitting the lead lender to collect. See L. Cherkis, Collier Real Estate Transactions and the Bankruptcy Code 114.05 (1984); Drake & Weems, Mortgage Loan Participations: The Trustee’s Attack" }, { "docid": "11690629", "title": "", "text": "52 Amer. Bankr.L.J. 23 (1978); MacDonald, Loan Participations as Enforceable Property Rights in Bankruptcy — A Reply to the Trustee’s Attack 53 Am.Bankr.L.J. 35 (1979). The significance of the trust or ownership characterization is that it effectively removes the res from the bankrupt estate. “The arguments for the beneficiary-trustee characterization of the ... relationship appear stronger than the arguments favoring the creditor-debtor relationship. A participant’s decision to invest in a given loan transaction will ordinarily be based upon its determination of (a) the creditworthiness of the underlying borrower, (b) the quality of the collateral, (c) the terms of the underlying loan, (d) the financial terms of the proposed participation arrangement, (e) the recommendation of the transaction by the lead lender and (f) the experience and reputation of the lead lender.” L. Cherkis, supra 4.05[3]. The transaction in this case is different from the typical participation transaction in two aspects. First, Woodson did not retain a percentage participation as lead lender in any of the loans. Second and most significantly, Woodson relieved the permanent investors of all risk of loss. This latter feature seems to result in a finding of a debtor-creditor relationship in most cases. See L. Cherkis, supra, if 4.05[3] at n. 44; G. Nelson, D. Whitman, Real Estate Finance Law 418 (2d ed. 1985); Drake & Weems, supra at 42-43. See also In re S.O.A.W. Enterprises, Inc., 32 B.R. 279 (Bankr.W.D.Tex.1983). At issue in S.O.A.W. was the nature of transactions in which the debtor corporation, S.O. A.W., a real estate developer, entered into financing arrangements with a bank whereby the bank “purchased” participations in “Agreements for Deeds.” The bank was entitled to receive 30% of the amount due from the buyers. However, until the bank received its 30%, it was entitled to receive 100% of all payments made by the buyers to the debtor. The debtor and its president guaranteed to the bank both the return of its investment and interest. Upon the bankruptcy of S.O.A.W., the court found that the bank did not have a right to the continued receipt of funds because the transactions at issue" }, { "docid": "11690623", "title": "", "text": "appeal in bankruptcy cases, this court stated, “one thing seems clear: certain proceedings in a bankruptcy case are so distinct and conclusive either to the rights of individual parties or the ultimate outcome of the case that final decisions as to them should be appealable as of right.” Id. at 1317. This court focused on similar concerns in In re Exennium, Inc., 715 F.2d 1401, 1403 (9th Cir.1983). The bankruptcy court had determined that the sale of leases from the debtor to a third party was void because the third party was the debtor’s former attorney. Although this holding did not settle finally the dispute between the trustee and the lessor, this court heard the appeal because it was “fundamental to the further outcome of this case” and “[ujntil settled this issue will cast its shadow over further administration of the estate”. See also In re Saco Local Development Corp., 711 F.2d 441 (1st Cir.1983) (an order establishing the fact of priority but not the amount is a final order for purposes of appeal). As the partial summary judgment in this case does not determine the interests of the revolving investors, we must decide whether the interests of the two types of investors are intertwined in such a way that resolution of the rights of the permanent investors affects or is affected by resolution of the claims of the revolving investors. On some loans, the funds of the revolving investors were used to supplement the permanent investors’ funds. For example, if Woodson could fund only 90% of a particular loan with funds from permanent investors, the other 10% would be funded by the revolving investors. Thus the revolving investors claim a partial interest in some of the same notes and deeds of trust in which permanent investors claim a partial interest. If the revolving investors ultimately are held to be general creditors, to the extent assets are removed from the estate, they may suffer. Rather than looking to the financial consequences that the decision may have on the revolving investors, however, we must determine whether the discrete legal issue of" }, { "docid": "3654964", "title": "", "text": "of a loan is the guarantee of repayment by the lead lender to a participant. See, Coronet Capital, 142 B.R. at 80 (citing Hutchins, What exactly is a Loan Participation?, 9 Rut.Cam.L.J. 447, 460 (1978)). See also, Threedy, 68 Or.L.Rev. 649; Knight, 3 Colum.Bus.L.Rev. 587. For example, in S.O.A.W., the debtor, a real estate developer, entered into a “Participation Agreement” with a bank which bought participations in “Agreements for Deeds”. Under the terms of the asserted participation, the bank was entitled to receive 30% of the amount due from the vendees. However, until the bank received its 30%, it was entitled to take 100% of the payments made to the debtor. In addition, the debtor and its president guaranteed to the bank the return of both its investment and its interest. In light of this fact, the court found that the bank bore no risk of nonpayment, a position contrary to that of a “participant” — one who assumes the same risk as that of the person selling the participation or generating the loan. Hence, despite the label of “Participation Agreement” and despite language in the agreement to the effect that the bank was “participating” in certain “Agreements for Deeds”, the court held that the arrangement constituted a loan. 32 B.R. at 282. A similar analysis was made in Woodson, where the debtor was a mortgage broker who found potential borrowers and proposed loans. The initial financing for the loans was provided by Woodson Investors, Ltd. (“WIL”), a limited partnership in which the debtor was the sole general partner. The debtor maintained both “permanent” and “revolving” fund investors to “take out” WIL’s interests in the loans. The arrangement provided for the permanent investors to receive a guaranteed interest rate on each investment and further guaranteed repayment regardless of whether borrowers made their monthly payments. An insurance policy from Fireman’s Fund was purchased to insure the debtor’s contractual obligations to its investors. The debtor’s bankruptcy trustee characterized the transactions between the debt- or, WIL, and the permanent investors as loans made by the permanent investors to the debtor, while Fireman’s Fund" }, { "docid": "3654965", "title": "", "text": "despite the label of “Participation Agreement” and despite language in the agreement to the effect that the bank was “participating” in certain “Agreements for Deeds”, the court held that the arrangement constituted a loan. 32 B.R. at 282. A similar analysis was made in Woodson, where the debtor was a mortgage broker who found potential borrowers and proposed loans. The initial financing for the loans was provided by Woodson Investors, Ltd. (“WIL”), a limited partnership in which the debtor was the sole general partner. The debtor maintained both “permanent” and “revolving” fund investors to “take out” WIL’s interests in the loans. The arrangement provided for the permanent investors to receive a guaranteed interest rate on each investment and further guaranteed repayment regardless of whether borrowers made their monthly payments. An insurance policy from Fireman’s Fund was purchased to insure the debtor’s contractual obligations to its investors. The debtor’s bankruptcy trustee characterized the transactions between the debt- or, WIL, and the permanent investors as loans made by the permanent investors to the debtor, while Fireman’s Fund insisted that they represented the purchase of participation interests. Stating that this “is entirely different from participation transactions in which participants share in risk and must rely on the creditworthiness of the borrower and the collateral,” the court agreed with the trustee that the transactions were loans. 813 F.2d at 271-72. In the instant case, paragraphs 4, 5 and 6 of the 1987 Transaction reflect the existence of multiple guarantees to EAB (including from SMC’s three principals) as well as a “with recourse” provision to SMC: WHEREAS, the limited partner of [YPH] has agreed to guarantee payment of the portion of the Loan purchased by [EAB] (the “Participant’s Share”); and WHEREAS, shareholders of [SMC] have also agreed to guarantee repayment of the Participant’s Share; and WHEREAS, [SMC] has agreed that the sale of Participant’s Share shall be with recourse to [SMC]; What this all suggests is that SMC effectively was guaranteeing EAB repayment of the loan. EAB asserts that the recourse provision was nothing more than a credit enhancement. This argument is questionable. The “with" }, { "docid": "11690632", "title": "", "text": "of accounts). In the case before us, permanent investors were not subject to any risk when they transferred funds to Woodson. They were paid interest monthly regardless of whether the original borrower paid Woodson. In the event of default, Woodson paid the investor the interest and the balance principal owed on the investor’s “participation.” The insurance contract with Fireman’s Fund made lending money to (or investing money with) Woodson a risk-free investment. We can conceptualize the transaction as one in which Fireman’s Fund served the function of an FDIC and Woodson the function of a borrowing bank. Woodson did not merely guarantee a certain return, but effectively guaranteed against all risk of loss. This is entirely different from participation transactions in which participants share in risk and must rely on the creditworthiness of the borrower and the collateral. The rate of interest which Woodson paid the permanent investors also suggests that the relationship was that of debtor-creditor. If the investors had purchased participation interests, the rate of interest which they received from Woodson normally would be based on a spread reflecting a reasonable and usual charge for servicing the loans for the investor-owners. Here, there was wide variation in the spread from transaction to transaction. On some notes, there was as much as a 6% spread between the interest rate paid by borrowers and that paid to investors, on others as little as 1%. This suggests that the rates were tied to prevailing borrowing rates at the time the permanent investors made funds available, rather than representing a servicing fee, an indication of lending, not purchase. We conclude that the transactions with permanent investors were loans. The permanent investors possessed none of the usual indicia of ownership. By contrast, Woodson retained all of the obligations of an owner and conducted itself throughout as owner. Simply calling transactions “sales” does not make them so. Labels cannot change the true nature of the underlying transactions. See Helvering v. Lazarus & Co., 308 U.S. 252, 255, 60 S.Ct. 209, 210, 84 L.Ed. 226 (1939); In re Berez, 646 F.2d 420, 421 (9th Cir.1981)." }, { "docid": "11690633", "title": "", "text": "be based on a spread reflecting a reasonable and usual charge for servicing the loans for the investor-owners. Here, there was wide variation in the spread from transaction to transaction. On some notes, there was as much as a 6% spread between the interest rate paid by borrowers and that paid to investors, on others as little as 1%. This suggests that the rates were tied to prevailing borrowing rates at the time the permanent investors made funds available, rather than representing a servicing fee, an indication of lending, not purchase. We conclude that the transactions with permanent investors were loans. The permanent investors possessed none of the usual indicia of ownership. By contrast, Woodson retained all of the obligations of an owner and conducted itself throughout as owner. Simply calling transactions “sales” does not make them so. Labels cannot change the true nature of the underlying transactions. See Helvering v. Lazarus & Co., 308 U.S. 252, 255, 60 S.Ct. 209, 210, 84 L.Ed. 226 (1939); In re Berez, 646 F.2d 420, 421 (9th Cir.1981). From the facts surrounding these transactions we conclude the bankruptcy court was clearly erroneous in finding them purchases and sales. We reverse and remand to the bankruptcy court to make such other determinations as may be required in light of our holding. . Although both the revolving and the permanent investors transferred funds to Woodson, the means by which they did so differed greatly. For the revolving investors, Woodson opened passbook savings accounts in each revolving fund investor’s name on which The Woodson Company was named as trustee and from which Woodson, under a limited power of attorney, could withdraw funds. Each investor deposited $100,000 to his account. The permanent investors, on the other hand, made checks payable to Woodson that were deposited in Woodson’s own account. Investors received in return various guarantees from Woodson and at some later time were assigned notes and deeds of trust by WIL. Permanent investors personally selected the loans in which they participated whereas Woodson determined how to use the revolving investors’ funds. Both permanent and revolving investors executed" }, { "docid": "11690622", "title": "", "text": "part of the bankrupt estate and that the notes, deeds of trust and their proceeds should be delivered to Fireman’s Fund; it reserved judgment, however, on the nature of the interests of revolving investors. As the interests of the revolving investors and other issues remain to be decided, we must determine whether the decision of the lower court is final within the meaning of § 158(d). The Supreme Court has adopted a practical rather than a technical construction of the requirement of “finality”. Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), (holding that the practical effects of marginally final orders must be taken into account in determining appealability). That a pragmatic approach to finality is necessary in bankruptcy. proceedings was recognized by this court in In re Mason, 709 F.2d 1313, 1318 (9th Cir.1983) where we found jurisdiction to hear the appeal of a denial of a motion to vacate an order for relief. In finding that such an order was final for purposes of appeal in bankruptcy cases, this court stated, “one thing seems clear: certain proceedings in a bankruptcy case are so distinct and conclusive either to the rights of individual parties or the ultimate outcome of the case that final decisions as to them should be appealable as of right.” Id. at 1317. This court focused on similar concerns in In re Exennium, Inc., 715 F.2d 1401, 1403 (9th Cir.1983). The bankruptcy court had determined that the sale of leases from the debtor to a third party was void because the third party was the debtor’s former attorney. Although this holding did not settle finally the dispute between the trustee and the lessor, this court heard the appeal because it was “fundamental to the further outcome of this case” and “[ujntil settled this issue will cast its shadow over further administration of the estate”. See also In re Saco Local Development Corp., 711 F.2d 441 (1st Cir.1983) (an order establishing the fact of priority but not the amount is a final order for purposes of appeal). As" }, { "docid": "11690618", "title": "", "text": "FLETCHER, Circuit Judge: Appellant, trustee in bankruptcy, appeals from a summary judgment excluding assets from the bankrupt estate. We reverse and remand. FACTS In 1984, the debtor, Woodson Company (Woodson), a licensed mortgage broker, filed under chapter 11 of the Bankruptcy Code. At the time of bankruptcy Woodson had a loan portfolio worth $65 million composed of approximately 380 loans secured by deeds of trust to real estate; approximately 2,200 investors furnished the funds for the loans. Typically, Woodson located and evaluated proposed loans and potential borrowers. Woodson Investors, Ltd. (WIL), a California limited partnership of which Woodson was the sole general partner, provided the initial financing for approved loans. WIL was the payee of promissory notes executed by the borrowers and beneficiary of deeds of trust securing the notes. Woodson located “permanent fund” investors (permanent investors) or “revolving fund” investors (revolving investors) to “take out” the interests of the limited partnership in the loans. WIL then assigned fractional interests in specific promissory notes and deeds of trust to the investors. The assignments were recorded in the county recorder’s office. Woodson kept possession of the promissory notes until paid or discharged by foreclosure. They were not endorsed by WIL to either Wood-son as attorney-in-fact for the investors, or to the investors. Woodson purchased an insurance policy from Fireman’s Fund whereby it insured Woodson’s contractual obligations to its investors. The agreement between the permanent investors and Woodson provided that the permanent investors receive a guaranteed rate of interest on each investment. The rate differed from agreement to agreement, the spread between that which the borrower paid Woodson and that which Woodson paid to the investor ranging between 1% and 6%. Woodson guaranteed monthly payments to each investor regardless of whether borrowers made their monthly payments. Woodson also agreed to advance sums to cover senior encumbrances, taxes, insurance, and liens. In the event of default, Woodson negotiated with the delinquent borrower to work out the default. Woodson, however, did not consult the investors during this process nor obtain their approval of any new or modified terms. If a loan was foreclosed, the" } ]

[ { "docid": "23189062", "title": "", "text": "F.2d 507, 508 (8th Cir. 1965), this court held: “[Ajppellant is not attacking the validity of the sentence imposed upon him * * * rather, he is questioning .the United States Board of Parole regarding the manner in which that sentence is being executed. Appellant may not utilize 28 U.S.C.A. § 2255 to secure the relief he seeks. This is clear from the language itself, and from the cases where the question arose. (Citing cases). If appellant is being illegally detained, his remedy is by habeas corpus in the proper judicial district.” Tanner v. Moseley, supra, 441 F.2d at 124 (emphasis in original). The unstated but necessarily underlying rationale of Tanner is that the district court lacked subject matter jurisdiction of the claim presented under § 2255. The subject matter of Tanner’s claim, the matter of the execution of the sentence, is not one of the recognized grounds for relief under § 2255. In other words, the claim herein raised is not cognizable under § 2255. The Supreme Court has said that the bill enacting § 2255 was a “jurisdictional bill” with the major purpose of shifting the hearing of previous habeas corpus actions to the more convenient forum of the sentencing court. Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); United States v. Hayman, 342 U.S. 205, 212-214, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Hartwell v. United States, 353 F.Supp. 354, 357 (D.D.C.1972). Prior to the enactment of § 2255 in 1948, federal district courts were being deluged with claims for relief from prisoners who were incarcerated in the territorial areas of these district courts. Section 2255 was enacted to create a jurisdictional basis in the sentencing court for certain types of post conviction claims, in general those dealing with the imposition of the sentence in which the sentencing court would have the previous knowledge and the immediate access to the necessary files. Therefore, § 2255 granted in personam jurisdiction in the sentencing court over the petitioner and the custodian of the petitioner, even though they would not necessarily be within" } ]

[ { "docid": "23060974", "title": "", "text": "bring a civil rights action directed at the validity of the prisoner’s conviction without first exhausting federal habeas corpus remedies. Id. at 1545. Similarly, in Spina, this court held that a federal prisoner could not challenge the fact or duration of his confinement in a Bivens action prior to the exhaustion of his habeas corpus post-conviction remedies. At 1128. Following Spina and Dees, we hold that because Solsona’s claims that he was denied counsel at his guilty plea and sentencing proceedings attack the constitutionality of his conviction and proof of Solsona’s claims would factually undermine the validity of his conviction, his exclusive initial remedy as to these claims is a motion under 28 U.S.C. § 2255. The district court would ordinarily have the option of simply treating Solsona’s Bivens claims as a section 2255 motion. Cf. Spina, at 1127 (district court treated Bivens action as § 2241 motion and then dismissed for want of jurisdiction). We note that in this case, however, the district court did not have jurisdiction to treat Solsona’s complaint as a section 2255 motion because a section 2255 motion must be filed with the sentencing court. Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) (§ 2255 claims “may be adjudicated only in the district in which the prisoner was sentenced”), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). Here, Solsona’s complaint was filed in the Eastern District of Texas. He was sentenced, however, in the Western District of Texas. Hence, the only court that would have jurisdiction to treat Solsona’s Bivens claims based on his right to counsel as a section 2255 motion is the District Court for the Western District of Texas. Furthermore, the district court could not treat Solsona’s claims that he was denied counsel at his guilty plea and sentencing proceedings as a section 2241 motion. See United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (“appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing”); Lane v. Hanberry, 601 F.2d 805, 806" }, { "docid": "22674143", "title": "", "text": "As such, the Bailey decision does not put forth a “new rule of constitutional law.” See, e.g., Triestman, 124 F.3d at 372 (stating that petitioner may not raise his Bailey claim in a second or successive § 2255 motion because Bailey was not a constitutional case) (collecting cases from other circuits); United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997) (stating that “Bailey announced only a new statutory interpretation, not a new rule of constitutional law” and thus was not a basis for a successive § 2255 motion). Therefore, the Southern District did not err in determining that Reyes’s Bailey claim was not cognizable in a second § 2255 motion. C. Reyes’s Bailey Claim May Be Considered Under Section 224-1 We now decide whether Reyes may utilize the “savings clause” of § 2255 in the circumstances presented here. 1. Savings Clause Test 28 U.S.C. § 2241 is typically used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir.2000). 28 U.S.C. § 2255, on the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.1990) (“Relief under [§ 2255] fe warranted for any error that ‘occurred at or prior to sentencing.’” (quoting United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980))). However, § 2241 may be utilized by a federal prisoner to challenge the legality of his or her conviction or sentence if he or she can satisfy the mandates of the so-called § 2255 “savings clause”: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his" }, { "docid": "22694767", "title": "", "text": "under 2255 does not establish that the remedy so provided is either inadequate or ineffective.” Williams, 323 F.2d at 673 (10th Cir.1963) (quoting Overman v. United States, 322 F.2d 649 (10th Cir.1963)). Bradshaw attempts to attack the validity of his Florida federal sentence under § 2241; he opposes his sentence and not the execution of his sentence. Cf. United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (petitioner’s appropriate remedy is under § 2255 and not § 2241 where alleged errors occurred at or prior to sentencing). He relies primarily on the sentencing court’s denial of his prior § 2255 motions to show § 2255 is an inadequate remedy. His reliance is misplaced. The sentencing court’s denial of his prior § 2255 motions does not alone establish bias and, even if Bradshaw’s § 2241 petition did establish bias, § 2255 still would be adequate because he could move to recuse the sentencing judge. See 28 U.S.C. §§ 144,455; Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir.) (motion to recuse makes § 2255 an effective remedy even if allegations of bias are true), cert. denied 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988). In short, Bradshaw provides insufficient evidence that relief is unavailable to him under a properly filed § 2255 motion. Therefore, we conclude the district court did not err in denying Bradshaw’s § 2241 petition and in dismissing his action without prejudice. AFFIRMED." }, { "docid": "22546071", "title": "", "text": "observed that Pack’s challenge to the validity of his sentence was governed by section 2255, not section 2241, and that only the court where he was convicted and sentenced (the Eastern District of Tennessee), not the court in the district where he was incarcerated (the Southern District of Mississippi), had jurisdiction to hear such a challenge. Pack now appeals the dismissal of his section 2241 petition. Discussion This Court reviews de novo a district court’s dismissal of a section 2241 petition on the pleadings. See Venegas v. Henman, 126 F.3d 760, 761 (5th Cir.1997). We conclude that the district court was correct in dismissing Pack’s section 2241 petition for lack of jurisdiction. A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities’ determination of its duration, and must be filed in the same district where the prisoner is incarcerated. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996); Blau v. United States, 566 F.2d 526, 527 (5th Cir.1978) (per curiam). A section 2255 motion, by contrast, “provides the primary means of collateral attack on a federal sentence.” Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.1990). Relief under section 2255 is warranted for errors cognizable on collateral review that occurred “at or prior to sentencing.” Id. (internal quotation omitted). A section 2255 motion must be filed in the sentencing court. Id. at 1113 n. 2. This Court has observed that “[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for a motion under [section] 2255.” McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.1979) (per curiam); see also Williams v. United States, 323 F.2d 672, 673 (10th Cir.1963) (per curiam) (noting that a section 2241 petition “is not an additional, alternative, or supplemental remedy, to the relief afforded by motion" }, { "docid": "22727296", "title": "", "text": "impartial to his claims, because he could avoid the successive § 2244 certification procedure by seeking § 2241 relief, and he could obtain review by the Sixth Circuit without needing to obtain a certificate of appealability. Both parties have waived oral argument on appeal. I. The appellate court renders de novo review of a district court judgment dismissing a habeas corpus petition filed under 28 U.S.C. § 2241. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). Such review reflects that the district court properly dismissed Charles’s § 2241 habeas corpus petition. A. The fifth paragraph of § 2255, the “savings clause,” provides that: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. Construing this language, courts have uniformly held that claims asserted by federal prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. § 2255, see Bradshaw, 86 F.3d at 166; Cabrera v. United States, 972 F.2d 23, 25-26 (2d Cir.1992); Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979), and that claims seeking to challenge the execution or manner in which the sentence is served shall be filed in the court having jurisdiction over the prisoner’s custodian under 28 U.S.C. § 2241. See Bradshaw, 86 F.3d at 166; United States v. Jalili, 925 F.2d 889, 893 (6th Cir.1991); DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir.1986) (per curiam); Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir.1977). Still, pursuant to the “savings clause” in § 2255, a federal prisoner may bring a claim challenging his conviction or imposition of" }, { "docid": "23494288", "title": "", "text": "those here. See Thomas v. Whalen, 962 F.2d 358 (4th Cir.1992) (petitioner convicted and sentenced for federal bank robbery, then convicted of state offenses and sentenced with no reference to federal sentences; completed time in state custody for state offenses and won credit for time served against federal sentence in district court; court of appeals held (in reversing) that claim was properly brought under § 2241); Larios v. Madigan, 299 F.2d 98 (9th Cir.1962) (issue of whether federal sentence ran concurrent with state sentence being served at time of federal sentencing was properly raised in § 2241 petition); Cozine v. Crabtree, 15 F.Supp.2d 997 (D.Or.1998) (federal conviction and sentence followed by California conviction and sentence, explicitly concurrent with federal sentence, and service of California sentence; after California parole, federal officials refuse to credit California time; court held prisoner entitled to release after § 2241 petition); Luther v. Vanyur, 14 F.Supp.2d 773 (E.D.N.C.1997) (after federal conviction and sentencing, and subsequent state conviction and sentencing, explicitly \"concurrent with any sentence now serving,” prisoner was received into custody of United States but then turned over to state custody to complete state sentence; court held that federal sentence continued to run during state custody after § 2241 petition)." }, { "docid": "22182312", "title": "", "text": "this analysis is helpful in this complex case not only to determine questions of retroactivity, as noted above, but also to shed light on questions raised about the constitutionality of AEDPA, which are discussed below. . Because Barrett fails the \"cause” prong of the test, we need not consider the \"prejudice” prong. Under the abuse of the writ doctrine, he must establish both. See McCleskey, 499 U.S. at 494, 111 S.Ct, 1454; see also Bousley, 118 S.Ct. at 1611. . Federal prisoners are permitted to use § 2241 to attack the execution, rather than the validity, of their sentences, and the \"inadequate or ineffective\" savings clause is not applicable to such attacks since they are outside the bounds of § 2255. See United States v. DiRusso, 535 F.2d 673, 674-76 (1st Cir. 1976) (\"Section 2255 ... does not grant jurisdiction over a post-conviction claim attacking the execution, rather than the imposition or illegality of the sentence.... The proper vehicle for attacking the execution of sentence ... is 28 U.S.C. § 2241.”); see also, e.g., Corrao, 152 F.3d at 191; Valona, 138 F.3d at 694 — 95. However, Barrett's challenge (despite his claim that he seeks remedies unavailable under § 2255) clearly involves validity. We also note that a §’ 2241 petition is properly brought in the district court with jurisdiction over the prisoner’s custodian (unlike a § 2255 petition, which must be brought in the sentencing court). See DiRusso, 535 F.2d at 675-76; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). We will assume arguendo that Barrett has brought his request for § 2241 relief in the right court (despite his assertion in his brief that he was in prison in Colorado when his petition was'filed and now is \"in Boston, Massachusetts on parole\"). See In re Dorsainvil, 119 F.3d at. 252; cf. Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999). . The dictum in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that “[a federal] prisoner barred by res judicata would seem as a consequence to have an 'inadequate or" }, { "docid": "22694766", "title": "", "text": "States v. Condit, 621 F.2d 1096, 1097 (10th Cir.1980). “The purpose of section 2255 is to provide a method of determining the validity of a judgment by the court which imposed the sentence, rather than by the court in the district where the prisoner is confined.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965). “The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.” Id. More specifically, § 2255 prohibits a district court from entertaining an application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to § 2255 “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255. “Failure to obtain relief under 2255 does not establish that the remedy so provided is either inadequate or ineffective.” Williams, 323 F.2d at 673 (10th Cir.1963) (quoting Overman v. United States, 322 F.2d 649 (10th Cir.1963)). Bradshaw attempts to attack the validity of his Florida federal sentence under § 2241; he opposes his sentence and not the execution of his sentence. Cf. United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (petitioner’s appropriate remedy is under § 2255 and not § 2241 where alleged errors occurred at or prior to sentencing). He relies primarily on the sentencing court’s denial of his prior § 2255 motions to show § 2255 is an inadequate remedy. His reliance is misplaced. The sentencing court’s denial of his prior § 2255 motions does not alone establish bias and, even if Bradshaw’s § 2241 petition did establish bias, § 2255 still would be adequate because he could move to recuse the sentencing judge. See 28 U.S.C. §§ 144,455; Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir.) (motion to recuse makes § 2255 an" }, { "docid": "23060975", "title": "", "text": "section 2255 motion because a section 2255 motion must be filed with the sentencing court. Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) (§ 2255 claims “may be adjudicated only in the district in which the prisoner was sentenced”), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). Here, Solsona’s complaint was filed in the Eastern District of Texas. He was sentenced, however, in the Western District of Texas. Hence, the only court that would have jurisdiction to treat Solsona’s Bivens claims based on his right to counsel as a section 2255 motion is the District Court for the Western District of Texas. Furthermore, the district court could not treat Solsona’s claims that he was denied counsel at his guilty plea and sentencing proceedings as a section 2241 motion. See United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (“appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing”); Lane v. Hanberry, 601 F.2d 805, 806 (5th Cir.1979) (§ 2255 “has consistently been construed to be the primary means of post-conviction relief for prisoners, allowing resort to habeas corpus only when it appears that the remedy under § 2255 would be ‘ineffective or inadequate’ ”). Hence, the district court had no jurisdiction to decide Solsona’s right to counsel claims, and the district court therefore erred in reaching the merits of these claims and in dismissing them with prejudice. The same is not true, however, of Solsona’s other claims, which are based on the premise that he is serving a sentence for felony escape, a crime for which he was neither convicted nor sentenced. We think that these claims could properly have been treated by the district court as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Section 2241 petitions, unlike section 2255 motions, need not be filed in the convicting court, but may be filed in any court with jurisdiction over the prisoner or his custodian. Blau v. United States, 566 F.2d 526, 527 (5th Cir.1978)" }, { "docid": "22182311", "title": "", "text": "dismissed for failure to exhaust state remedies and he subsequently exhausts his stale remedies and refiles the § 2254 petition, are claims included within that petition that were not included within his initial § 2254 filing ‘second or successive habeas applications?” Slack v. McDaniel,U.S. -, 119 S.Ct. 1025, 143 L.Ed.2d 36 (Feb. 22, 1999) (granting certiorari); see also Stewart, 118 S.Ct. at 1622 n. *. However, the answer to this question does not control our conclusion that Barrett’s petition is \"second or successive,” since all of the claims properly presented in Barrett's first petition were adjudicated on the merits and he bypassed the opportunity to have his Jeneks Act claim adjudicated as well. See Graham v. Johnson, 168 . F.3d 762, 774 n. 7 (5th Cir. 1999). . We are cognizant that if we were to perform a \"cause and prejudice”/\"actual innocence\" analysis of every second or successive petition under § 2255, we would be undermining the clear intent of Congress that stricter standards apply under AEDPA and that the pre-clearance process be streamlined. However, this analysis is helpful in this complex case not only to determine questions of retroactivity, as noted above, but also to shed light on questions raised about the constitutionality of AEDPA, which are discussed below. . Because Barrett fails the \"cause” prong of the test, we need not consider the \"prejudice” prong. Under the abuse of the writ doctrine, he must establish both. See McCleskey, 499 U.S. at 494, 111 S.Ct, 1454; see also Bousley, 118 S.Ct. at 1611. . Federal prisoners are permitted to use § 2241 to attack the execution, rather than the validity, of their sentences, and the \"inadequate or ineffective\" savings clause is not applicable to such attacks since they are outside the bounds of § 2255. See United States v. DiRusso, 535 F.2d 673, 674-76 (1st Cir. 1976) (\"Section 2255 ... does not grant jurisdiction over a post-conviction claim attacking the execution, rather than the imposition or illegality of the sentence.... The proper vehicle for attacking the execution of sentence ... is 28 U.S.C. § 2241.”); see also, e.g., Corrao," }, { "docid": "22400624", "title": "", "text": "East Indian background, certain parties connected with the various banks have agreed to modify their statements in exchange for immunity from prosecution. I have spoken with the local judicial officers to solicit their support. The district court determined that the claims must be brought in a section 2255 motion to the sentencing court and thus dismissed the action for lack of jurisdiction. After unsuccessfully moving for reconsideration under Fed.R.Civ.P. 59, Tripati timely appeals (CR 38, 41). It is noted that at the time he filed his habeas petition, Tripati’s direct appeal of his conviction was pending in the Tenth Circuit Court of Appeals. The Tenth Circuit affirmed that conviction and denied Tripati’s motion for rehearing en banc. On October 6, 1986 the Supreme Court denied appellant’s petition for writ of certiorari on that decision. Tripati v. United States, — U.S. —, 107 S.Ct. 151, 93 L.Ed.2d 91 (1986). This Court has held that “[ejxcept under most unusual circumstances ... no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.” Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970). There appear to be no unusual circumstances here which would trigger such an exception. However, while appellant’s direct appeal to the Tenth Circuit has been exhausted, there remains a salient issue of the appropriateness of a section 2241 petition for a writ of habeas corpus rather than a section 2255 motion. Accordingly, we elect to deal with this appeal on the merits. This court reviews de novo the dismissal of a petition for a writ of habeas corpus. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir.1986). A section 2255 motion to the sentencing court is generally the appropriate vehicle for challenging a conviction. 28 U.S.C. § 2255; United States v. Hayman, 342 U.S. 205, 217, 72 S.Ct. 263, 271, 96 L.Ed. 232 (1952); United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984). By the terms of section 2255, a prisoner authorized to apply for section 2255 relief may" }, { "docid": "23603944", "title": "", "text": "U.S.C. § 2241. The ordinary vehicle for a federal prisoner to seek habeas relief is 28 U.S.C. § 2255, under which such a prisoner may have his sentence vacated or set aside. A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction. Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir.1997); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 5 (2d Cir.1991). Consequently, appellant’s petition to expunge the Bureau’s disciplinary sanctions from his record, including the loss of good time credits, as a challenge to the execution of his sentence rather than the underlying conviction, is properly brought via an application for a writ under § 2241. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (federal inmate’s challenge to loss of good time credits is properly brought under § 2241 because it is a challenge to “an action affecting the fact or duration of the petitioner’s custody”); Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 758-59 (3d Cir.1996) (prisoner’s challenge to loss of good time credits following disciplinary proceeding brought pursuant to § 2241); cf. Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir.1999) (holding that prisoner may bring § 1983 action, rather than habeas petition, when, as in the case where there is not a loss of good time credits, prisoner challenges disciplinary sanction that does not affect the length of confinement). Although not presently implicated, it is worth noting that the correlative habeas provisions for state prisoners are 28 U.S.C. § 2254, applying specifically to “a person in custody pursuant to the judgment of a State court,” and the somewhat broader provisions of § 2241, covering all persons “in custody” in violation of federal law. 28 U.S.C. §§ 2254(a), 2241(c)(3) (1994). B. Petitioner failed to exhaust the administrative remedies established by the Bureau’s regulations and due to his delay, those remedies are no longer available to him. We have not addressed the issue of precisely under what circumstances" }, { "docid": "23494287", "title": "", "text": "of determining the validity of a judgment by the court which imposed the sentence....” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965); see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (\"A motion under 28 U.S.C.A. § 2255 is a substitute for a writ of habeas corpus providing an exclusive remedy in the sentencing court for any errors occurring at or prior to sentencing, including construction of the sentence itself.”). When an action addresses the execution of a sentence by prison or administrative officials, rather than the validity of the sentence, § 2255 relief is unavailable. See United States v. Barrett, 178 F.3d 34, 50 n. 10 (1st Cir.1999) (citing United States v. DiRusso, 535 F.2d 673, 674 (1st Cir.1976)); United States v. Scott, 803 F.2d 1095, 1096 (10th Cir.1986); United States v. Giddings, 740 F.2d 770, 771 (9th Cir.1984); Lee v. United States, 501 F.2d 494, 499 (8th Cir.1974). . Numerous courts have held that § 2241 is the appropriate post-exhaustion avenue for relief in cases with facts similar to those here. See Thomas v. Whalen, 962 F.2d 358 (4th Cir.1992) (petitioner convicted and sentenced for federal bank robbery, then convicted of state offenses and sentenced with no reference to federal sentences; completed time in state custody for state offenses and won credit for time served against federal sentence in district court; court of appeals held (in reversing) that claim was properly brought under § 2241); Larios v. Madigan, 299 F.2d 98 (9th Cir.1962) (issue of whether federal sentence ran concurrent with state sentence being served at time of federal sentencing was properly raised in § 2241 petition); Cozine v. Crabtree, 15 F.Supp.2d 997 (D.Or.1998) (federal conviction and sentence followed by California conviction and sentence, explicitly concurrent with federal sentence, and service of California sentence; after California parole, federal officials refuse to credit California time; court held prisoner entitled to release after § 2241 petition); Luther v. Vanyur, 14 F.Supp.2d 773 (E.D.N.C.1997) (after federal conviction and sentencing, and subsequent state conviction and sentencing, explicitly \"concurrent with any sentence now serving,” prisoner was received into custody" }, { "docid": "22674144", "title": "", "text": "the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.1990) (“Relief under [§ 2255] fe warranted for any error that ‘occurred at or prior to sentencing.’” (quoting United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980))). However, § 2241 may be utilized by a federal prisoner to challenge the legality of his or her conviction or sentence if he or she can satisfy the mandates of the so-called § 2255 “savings clause”: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255 (2000) (emphasis added). The inadequacy or inefficacy of the remedy will therefore permit a federal prisoner to file a writ of habeas corpus under provisions such as § 2241. “The petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective.” Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.2000). Our jurisprudence regarding § 2255’s savings clause makes clear that § 2241 is not a mere substitute for § 2255 and that the inadequacy or inefficacy requirement is stringent. See, e.g., Kinder v. Purdy, 222 F.3d 209, 214 (5th Cir.2000) (“Section 2241 is simply not available to prisoners as a means of challenging a result they previously obtained from a court considering their petition for habeas relief.”), cert. denied, — U.S. -, 121 S.Ct. 894, 148 L.Ed.2d 800 (2001); Pack, 218 F.3d at 453 (“[Mjerely failing to succeed in a section 2255 motion does not establish the inadequacy or ineffectiveness of the section 2255 remedy.”); Id. at 452-53 (collecting cases); Tolliver v. Dobre, 211 F.3d 876," }, { "docid": "23494286", "title": "", "text": "Lindh, 96 F.3d at 866 (all implying or stating that grace period ends on April 23, 1997). . Of course, nothing in our discussion above, limiting the effect of AEDPA’s limitations period on pre-existing causes of action, should be held to limit or otherwise affect the power of district courts to dismiss motions for relief under § 2255 on account of unreasonable and prejudicial delay under Rule 9(a) of the Rules Governing Section 2255 Proceedings. See Goodman, 151 F.3d at 1337 n. 4; Ross v. Artuz, 150 F.3d at 103. . Only a limited class of claims may be brought under § 2255: claims involving \"the right to be released upon the ground that the sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum allowed by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. \"The purpose of section 2255 is to provide a method of determining the validity of a judgment by the court which imposed the sentence....” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965); see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980) (\"A motion under 28 U.S.C.A. § 2255 is a substitute for a writ of habeas corpus providing an exclusive remedy in the sentencing court for any errors occurring at or prior to sentencing, including construction of the sentence itself.”). When an action addresses the execution of a sentence by prison or administrative officials, rather than the validity of the sentence, § 2255 relief is unavailable. See United States v. Barrett, 178 F.3d 34, 50 n. 10 (1st Cir.1999) (citing United States v. DiRusso, 535 F.2d 673, 674 (1st Cir.1976)); United States v. Scott, 803 F.2d 1095, 1096 (10th Cir.1986); United States v. Giddings, 740 F.2d 770, 771 (9th Cir.1984); Lee v. United States, 501 F.2d 494, 499 (8th Cir.1974). . Numerous courts have held that § 2241 is the appropriate post-exhaustion avenue for relief in cases with facts similar to" }, { "docid": "1178742", "title": "", "text": "full is a matter properly raised in a 28 U.S.C. § 2241 petition for a writ of habeas corpus. Larios v. Madigan, 299 F.2d 98, 99 (9th Cir.1962). A § 2241 petition for a writ of habeas corpus must be addressed to the federal district court in the district where the prisoner is confined. Giddings, 740 F.2d at 772; United States v. Ford, 627 F.2d 807, 813 (7th Cir.), cert. denied, 449 U.S. 923, 101 S.Ct. 324, 66 L.Ed.2d 151 (1980). Because defendant challenged the execution and not the validity of his sentence, defendant’s claims were not cognizable under § 2255. Defendant must raise his claims in a § 2241 petition in Oklahoma, where he is incarcerated. The district court did not have jurisdiction to consider this action. Because we conclude this action was inappropriately commenced in Wyoming, we need not consider defendant’s argument on appeal that the district court erred in denying § 2255 relief without holding an evidentiary hearing. The judgment of the United States District Court for the District of Wyoming is VACATED, and the action is REMANDED to the district court to dismiss defendant’s § 2255 motion to vacate without prejudice to asserting the claim in a proper forum. The mandate shall issue forthwith." }, { "docid": "3113882", "title": "", "text": "Goldstein, CR 94-0529-EFL (N.D.Ca.), petitioner was convicted of perjury, for which he was sentenced to a term of 18 months with three years supervised release, to run concurrently with the sentence imposed in CR 94-0528-EFL. DISCUSSION III An individual no longer in custody may employ the writ of error eoram nobis to attack his conviction. United States v. Morgan, 346 U.S. 502, 511-13, 74 S.Ct. 247, 252-54, 98 L.Ed. 248 (1954); United States v. Mett, 65 F.3d 1531, 1534 (9th Cir.1995). “The petition fills a very precise gap in federal criminal procedure. A convicted defendant in federal custody may petition to have a sentence or conviction vacated, set aside or corrected under the federal habeas corpus statute, 28 U.S.C. § 2255. However, if the sentence has been served, there is no statutory basis to remedy the ‘lingering collateral consequences’ of the unlawful conviction. Recognizing this statutory gap, the Supreme Court has held that the common law petition for writ of error coram nobis is available in such situations, even though the procedure authorizing the issuance of the writ is abolished for civil cases by Fed.R.Civ.P. 60(b). District courts are authorized to issue the writ pursuant to the All Writs Act, 28 U.S.C. 1651(a) (1994).” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.1994) (citations omitted). DATE: August 23,1996 Here, petitioner seeks a writ of error coram nobis although he remains in custody and is challenging the length of his sentence. The writ of error coram nobis is, thus, not the proper legal procedure for petitioner to employ; rather, the petitioner should have filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See e.g., Tyler v. United States, 929 F.2d 451, 453 n. 5 (9th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 142, 116 L.Ed.2d 108 (1991); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir.1991); United States v. Giddings, 740 F.2d 770, 771 (9th Cir.1984). The federal courts have a responsibility to construe liberally pro se prisoners’ pleadings as habeas corpus petitions where the interests of justice demand. Brown v. Vasquez, 952" }, { "docid": "1178741", "title": "", "text": "PER CURIAM. In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal. This is an appeal from an order of the United States District Court for the District of Wyoming denying defendant’s 28 U.S.C. § 2255 motion to vacate sentence. In his motion to vacate sentence, defendant, a prisoner in the Federal Correctional Institution in El Reno, Oklahoma, alleged that his sentence had expired and he was entitled to release from prison. Defendant maintained his federal sentence commenced when his appeal bond was revoked and, therefore, his federal sentence ran concurrently with the completion of service of a sentence listed on a Utah parole revocation warrant. When an action addresses the execution of a sentence rather than the validity of the sentence, § 2255 relief is unavailable. United States v. Giddings, 740 F.2d 770, 771 (9th Cir.1984); Lee v. United States, 501 F.2d 494, 499 (8th Cir.1974). A claim to immediate release on the ground that a federal sentence has been served in full is a matter properly raised in a 28 U.S.C. § 2241 petition for a writ of habeas corpus. Larios v. Madigan, 299 F.2d 98, 99 (9th Cir.1962). A § 2241 petition for a writ of habeas corpus must be addressed to the federal district court in the district where the prisoner is confined. Giddings, 740 F.2d at 772; United States v. Ford, 627 F.2d 807, 813 (7th Cir.), cert. denied, 449 U.S. 923, 101 S.Ct. 324, 66 L.Ed.2d 151 (1980). Because defendant challenged the execution and not the validity of his sentence, defendant’s claims were not cognizable under § 2255. Defendant must raise his claims in a § 2241 petition in Oklahoma, where he is incarcerated. The district court did not have jurisdiction to consider this action. Because we conclude this action was inappropriately commenced in Wyoming, we need not consider defendant’s argument on appeal that the district court erred in denying § 2255 relief without holding an evidentiary hearing. The judgment of the United States District Court for the District of Wyoming is" }, { "docid": "22400625", "title": "", "text": "section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.” Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970). There appear to be no unusual circumstances here which would trigger such an exception. However, while appellant’s direct appeal to the Tenth Circuit has been exhausted, there remains a salient issue of the appropriateness of a section 2241 petition for a writ of habeas corpus rather than a section 2255 motion. Accordingly, we elect to deal with this appeal on the merits. This court reviews de novo the dismissal of a petition for a writ of habeas corpus. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir.1986). A section 2255 motion to the sentencing court is generally the appropriate vehicle for challenging a conviction. 28 U.S.C. § 2255; United States v. Hayman, 342 U.S. 205, 217, 72 S.Ct. 263, 271, 96 L.Ed. 232 (1952); United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984). By the terms of section 2255, a prisoner authorized to apply for section 2255 relief may not bring a section 2241 petition for a writ of habeas corpus “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255. A remedy is not inadequate or ineffective under section 2255 merely because the sentencing court denied relief on the merits. Johnson v. Petrovsky, 626 F.2d 72, 73 (8th Cir.1980); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.1979); Boyden v. United States, 463 F.2d 229, 230 (9th Cir.1972), cert. denied, 410 U.S. 912, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973); Redfield v. United States, 315 F.2d 76, 83 (9th Cir.1963); see also Estep v. United States, 316 F.2d 767, 769 (9th Cir.1963) (unspecified fear of different treatment is not sufficient), cert. denied, 376 U.S. 916, 84 S.Ct. 672, 11 L.Ed.2d 612 (1964). In his habeas petition, appellant challenges the legality of" }, { "docid": "5238498", "title": "", "text": "PER CURIAM: Jose Cleto appeals the district court’s denial of his motion for credit on his sentence. Finding no error, we affirm. Cleto filed a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, claiming sentence credit under 18 U.S.C. § 3585 for time spent “in custody” during his release on bond pending trial and appeal. The district court denied the motion. The government correctly points out that Cleto’s claim should have been filed as a petition for writ of habeas corpus under 28 U.S.C. § 2241, as he challenges the execution of his sentence rather than the validity of his conviction and sentence. See United States v. Gabor, 905 F.2d 76, 77-78 (5th Cir.1990). The district court had jurisdiction, nevertheless, because Cleto is incarcerated at the La Tuna federal prison camp, which is located in the Western District of Texas. See Gabor, id. at 78. Thus, in the interest of efficiency, we will consider Cleto’s petition, as it makes no practical difference whether the claim is filed under section 2255 or section 2241. Id. Although exhaustion of administrative remedies is a prerequisite to filing a section 2241 petition, see Gabor, 905 F.2d at 78 n. 2, the government’s brief does not address whether Cleto has exhausted his administrative remedies. The exhaustion requirement thus is waived. See United States v. Woods, 888 F.2d 653, 654 (10th Cir.1989); United States v. Bleike, 950 F.2d 214, 219 (5th Cir.1991). Cleto’s offense was committed in March 1989. Therefore, he is entitled to a sentence credit for any time “spent in official detention prior to the date the sentence commences_” 18 U.S.C. § 3585(b) (effective November 1, 1987). Title 18 § 3568, the predecessor statute to section 3585, entitled a defendant to sentence credit “for any days spent in custody in connection with the offense or acts for which sentence was imposed.” We exclude from the definition of “custody,” under section 3568, pretrial release on bail and time spent on bail pending appeal. United States v. Mares, 868 F.2d 151, 152 (5th Cir.1989). “Custody” for purposes of section" } ]

[ { "docid": "22427627", "title": "", "text": "of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.P. 56(e). Summary judgment will be entered against the non-moving party if that party does not present such specific facts. Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Id.; Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1181(9th Cir.1988). “[I]n ruling on a motion for summary judgment, the nonmoving party’s evidence ‘is to be believed, and all justifiable inferences are to be drawn in [that party’s] favor.’ ” Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505, 91 L.Ed.2d 202). But the non-moving party must come forward with more than “the mere existence of a scintilla of evidence.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202. Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). Simply because the facts are undisputed does not make summary judgment appropriate. Instead, where divergent ultimate inferences may reasonably be drawn from the undisputed facts, summary judgment is improper. See *933 Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir.1985). B. Plaintiffs’ Motion for Summary Adjudication: May GMP Sub-License Intellectual Property Rights Without Plaintiffs’ Permission? It is well established in patent and copyright law that a patent or copyright licensee may not sub-license his licensed intellectual property rights without express permission from the licensor. See Gardner v. Nike, Inc., 279 F.3d 774 (9th Cir.2002); Everex Systems v. Cadtrak Corp., 89 F.3d 673, 679 (9th Cir.1996). (The Court will henceforth refer to this rule as “the sub-licensing rule.”) Although the Ninth Circuit has not addressed whether the sub-licensing rule applies to trademark licenses," } ]

[ { "docid": "20060647", "title": "", "text": "an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Moreover, “if the factual context makes the nonmoving party’s claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Cal. Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)) (original emphasis). The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). Thus, the question is whether “reasonable minds could differ as to the import of the evidence.” Eisenberg, 815 F.2d at 1289. However, when “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” T.W. Elec., 809 F.2d at 631. Also, inferences from the facts must be drawn in the light most favorable to the nonmoving party. Id. These inferences may be drawn both from underlying facts that are not in dispute, as well as from disputed facts which the judge is required to resolve in favor of the nonmov-ing party. Id. III. Analysis A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state. Davis v. Metro Prod., Inc., 885 F.2d 515, 524 (9th Cir.1989). Accordingly, Hawaii substantive law applies. A. Counts I and II: Fraudulent Misrepresentation Counts I and II of the amended complaint allege fraudulent misrepresentation, fraudulent withholding of material information, negligent misrepresentation, and negligent withholding of material information. Megdal alleges that he relied upon the bond’s representation that it covered all" }, { "docid": "2658690", "title": "", "text": "August 7, 2002 order in Zacher; (2) the August 29, 2002 order in Stone granting summary judgment in favor of AMP on the claims of all plaintiffs except Scott; and (3) the August 29, 2002 order granting summary judgment in favor of all Trust Defendants. We have jurisdiction under 28 U.S.C. § 1291 to review these final orders of the district court. III. Standards of Review We review de novo the district court’s grant of a motion for summary judgment, United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003); a district court’s determination of standing, Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir.2003), personal jurisdiction, Dole Food Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir.2002), and the interpretation of a statute, Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir.2001) (en banc). In reviewing an order granting a summary judgment, we view the evidence in the light most favorable to the nonmoving party and determine whether there is any genuine issue of material fact. City of Tacoma, 332 F.3d at 578; FED. R. CIV. P. 56. Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues. Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir.1982). We also review de novo whether the district court correctly applied - the substantive law. City of Tacoma, 332 F.3d at 578. IV. Discussion A. Summary Judgment in Favor of Loan Originating Defendants The primary issue with respect to the loans in these cases is whether Union and AMP were lenders or were simply acting as brokers for TMS, Empire, and First-Plus. A lender is one who puts money at risk. The touchstone for decision here is whether licensed or unlicensed parties were placing their own njoney at risk at any time during the transactions. The distinction is crucial because Union and AMP were not licensed under the Washington CLA at the time of the transactions at issue. If they were lenders, with" }, { "docid": "15476861", "title": "", "text": "2012 when his brother died and is unable to travel to Yemen to visit his extended family and to manage property he owns there. Amir Meshal: Meshal lives in Minnesota. In June 2009 Meshal was not allowed to board a flight from Irvine, California, to Newark, New Jersey. Meshal was told by an FBI agent that he was on a government list that prohibits him from flying. In October 2010 FBI agents offered Meshal the opportunity to serve as a government informant in exchange for assistance in removing his name from the No Fly List. Because Meshal is unable to fly, he cannot visit his mother and extended family in Egypt. Stephen Durga Persaud: Persaud lives in Irvine, California. In May 2010 Persaud was not allowed to board a flight from St. Thomas to Miami. An FBI agent told Persaud that he was on the No Fly List, interrogated him, and told him the only way to get off the No Fly List was to “talk to us.” In June 2010 Persaud took a five-day boat trip from St. Thomas to Miami and a four-day train ride from Miami to Los Angeles so he could be home for the birth of his second child. Because he cannot fly, Persaud cannot travel to Saudi Arabia to perform the hajj pilgrimage. STANDARDS Summary judgment is appropriate when there is not a “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed. R.Civ.P. 56(a). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)). DISCUSSION As noted, Plaintiffs allege Defendants have violated Plaintiffs’ Fifth Amendment right to procedural due process" }, { "docid": "21942457", "title": "", "text": "not entitled to relief in the district court.” See, e.g., Nelson v. Biter, 33 F.Supp.3d 1173, 1176-78 (C.D. Cal. 2014) (dismissing a habeas petition deemed not cognizable). Dismissal on the basis of cogniz-ability is appropriate “only where the allegations in the petition are ‘vague [or] conclusory1 or ‘palpably incredible,’ or ‘patently frivolous or false.’ ” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)) (internal citations omitted). A petition may not be cognizable, for example, where the petitioner fails to allege a federal claim. Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000); see also Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)) (holding that federal habeas courts cannot review state court applications of state procedural rules). Rule 4, however, applies only to district courts. See Rules Governing § 2254 Cases in the United States District Court, Rule 4 (instructing the district court); see also Cmt. to Rule 4 of the Rules Governing § 2254 Cases in the United States District Court (explaining that the rule was “designed” to provide “flexibility” to the district court judge). In reviewing an application for a second or successive habeas petition, we do not assess the cog-nizability of that petition. Our directions for analyzing such applications derive from § 2244(b)(2)-(3), which directs us to determine whether the petitioner made a prima-facie showing that the claim was not presented in a prior application, or if it was, whether the petition “relies on a new rule of constitutional law” or its factual predicate “could not have been discovered previously through the exercise of due diligence.” Our task under § 2244(b)(2)-(3) is therefore narrow in scope. Thus upon transfer, the district court should assess whether -Clayton’s petition is cognizable. IY. For the foregoing reasons, we deny, the application as unnecessary and transfer the petition to the district court with instructions to consider it as a first habeas petition. 28 U.S.C. § 2241; Martinez-Villareal" }, { "docid": "21580428", "title": "", "text": "a petition for habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). “A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court.” Id. “ ‘ “[Njotice” pleading is not sufficient, for the petition is expected to state facts that point to a “real possibility of constitutional error.” ’ ” Blackledge v. Allison, 431 U.S. 63, 75 n. 7, 97 S.Ct. 1621, 1630 n. 7, 52 L.Ed.2d 136 (1977) (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases, 28 U.S.C. § 2254 foll. (1976) (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.1970))). DISCUSSION I. Propriety of District Court’s Dismissal In its response to Obremski’s petition, the parole board moved “for an order dismissing this case pursuant to Fed.R. Civ.P. 12(b) on the ground that the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 fails to raise any issue of federal law.” The district judge stated: “I grant the Board’s motion to dismiss.” The Supreme Court has stated that the view “that a Rule 12(b)(6) motion is an appropriate motion in a habeas corpus proceeding” is “erroneous.” Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14, 98 S.Ct. 556, 563 n. 14, 54 L.Ed.2d 521 (1978). Nevertheless, rule 4 of the Rules Governing Section 2254 in the United States District Courts “explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.” Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir.1983); see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir.1989) (meritorious motions to dismiss are permitted by Rule 4). Because the district court’s dismissal was based on its conclusion that the facts alleged in Obrem-ski’s petition did not entitle him to habeas relief as a matter of law, we review the district court’s order as a summary dismissal under Rule 4. II. Exhaustion of State" }, { "docid": "5311351", "title": "", "text": "hearing at which he and his wife could testify. ANALYSIS Section 2255 requires that “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing ..., determine the issues and make findings of fact and conclusions of law.” 28 U.S.C. § 2255 (1982). When section 2255 motions are based on alleged occurrences entirely outside the record, which if true would support relief, the court must conduct a hearing on those allegations “unless, viewing the petition against the record, its allegations do not state a claim for relief or are so patently frivolous or false as to warrant summary dismissal.” See Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). In deciding such motions judges need not conduct full evidentiary hearings. See Rules Governing Habeas Corpus Cases. Section 2255 itself “recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.” Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). Case law and the Rules Governing Habe-as Corpus Cases recognize that courts may expand the record for considering section 2255 motions with discovery and documentary evidence. Blackledge v. Allison, 431 U.S. 63, 81-83, 97 S.Ct. 1621, 1632-34, 52 L.Ed.2d 136 (1977) (citing Rules Governing Habeas Corpus Cases); Farrow v. United States, 580 F.2d 1339, 1352-53 (9th Cir.1978). Judges may also supplement the record with their own notes and recollections of the plea hearing. Abatino v. United States, 750 F.2d 1442, 1444 (9th Cir.1985); Farrow, 580 F.2d at 1352. Decisions to hold hearings and conduct discovery in such cases are committed to the court’s discretion. Machibroda, 368 U.S. at 495, 82 S.Ct. at 514. Section 2255 requires only that the judge give the prisoner’s claim “careful consideration and plenary processing, including full opportunity for presentation of the relevant facts.” Blackledge, 431 U.S. at 82-83, 97 S.Ct. at 1633. Although we recognize that “[wjhen the issue is one of credibility, resolution on the basis" }, { "docid": "14172393", "title": "", "text": "L.Ed.2d 699 (2002). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party’s claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir.1998) (citation omitted). The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin, 261 F.3d at 919. DISCUSSION I. Eighth Amendment To prevail on a claim under the Eighth Amendment for the failure to protect, an inmate must show he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In addition, the inmate must demonstrate the particular defendant acted with deliberate indifference. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. In order to prove deliberate indifference in this context, Plaintiff must prove each Defendant “acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842, 114 S.Ct. 1970. If an official fails to alleviate a significant risk he should have perceived but did not, an inmate does not state a claim. Id. at 838, 114 S.Ct. 1970. Pursuant to 42 U.S.C. § 1997e(e), “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” In the Ninth Circuit Court, this requires “a prior showing of physical injury that need not be significant but must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir.2002). Plaintiff presents no evidence of physical injury resulting from Defendants’ alleged failure to protect him from other inmates. Thus, to the extent Plaintiff seeks compensatory" }, { "docid": "716959", "title": "", "text": "860 (10th Cir.2005). As we stated in Anderson, “ ‘[wjhether the record raises a genuine factual issue [requiring an evi-dentiary hearing in a § 2254 proceeding] is decided by the same standards used to decide a Rule 56 motion for summary judgment.’ ” Id. (quoting East v. Scott, 55 F.3d 996, 1002 (5th Cir.1995)) (brackets in original); see Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Thus, the court is required to conduct the evidentiary hearing only if the admissible evidence presented by petitioner, if accepted as true, would warrant relief as a matter of law. Mr. Velarde does not satisfy that standard here because, by his own admission, he was unable to procure the necessary evidence from the school officials without judicial compulsion. In limited circumstances, however, a defendant who is unable to submit evidence to the court sufficient to warrant an evi-dentiary hearing, is able to make a showing that further investigation under the court’s subpoena power very likely would lead to the discovery of such evidence. In that rare case, what should the defendant do? The answer, we think, is to request leave to conduct discovery. Discovery is authorized in habeas corpus cases, an analogous post-conviction proceeding. See Blackledge, 431 U.S. at 81-82, 97 S.Ct. 1621, citing Rule 6 of the Rules Governing Ha-beas Corpus. Courts have authority to allow discovery based on the All Writs Act, 28 U.S.C. § 1651, a “legislatively approved source of procedural instruments designed to achieve the rational ends of the law” that “courts may rely upon ... in issuing orders appropriate to assist them in conducting factual inquiries.” Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) (internal quotation marks and citations omitted). According to the Supreme Court, “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is” entitled to a new trial, “it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Id.; see" }, { "docid": "12658993", "title": "", "text": "Rule 32.6(b). 2. Summary Dispositions, Evidentiary Hearings, and AEDPA The majority’s central holding — that Borden’s claims were adjudicated on their merit when the Alabama state court dismissed them for failing to meet Rule 32.6(b)’s specificity requirement — raises another important concern. Borden was never afforded an evidentiary hearing. The state court summarily dismissed his claims without granting him an opportunity to develop the factual record. The majority decides that these Rule 32.6(b) dismissals were on the merits, triggering deferential review under AEDPA, because they were the substantive equivalent of dismissals under Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”) in federal court. Puzzlingly, however, in applying that deference, the majority never once engages with, or even mentions, the substantive pleading burden enforced by Habeas Rule 4. See Habeas Rule 4, advisory committee’s note (“[T]he petition is expected to state facts that point to a real possibility of constitutional error.” (internal quotation marks omitted)). All adjudications on the merits — including summary dismissals — are entitled to deference under AEDPA. But not all adjudications on the merits decide the same thing. Habeas claims may be dismissed at the pleading stage, for example, because, as pled, they are so “ Vague (or) conclusory’ as to warrant dismissal for that reason alone,” Blackledge v. Allison, 431 U.S. 63, 75, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)); or “when viewed against the record,” they may be shown to be “so palpably incredible, so patently frivolous or false, as to warrant summary dismissal,” id. at 76, 97 S.Ct. 1621 (internal quotation marks omitted) (citations omitted). If claims survive these threshold inquiries, they may still be susceptible to summary judgment because there remains no genuine issue of material fact to resolve in further proceedings. Id. at 80-81, 97 S.Ct. 1621 (citing Fed.R.Civ.P. 56(e), (f)); see also Alabama Rule of Criminal Procedure 32.7(d). Alternatively, when claims are denied at the proof stage — ie. after the proceedings have run their full course — the court has" }, { "docid": "10592681", "title": "", "text": "absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. “This burden is not a light one.... The non-moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) (citation omitted). A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Freecycle-Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004) (citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)). See also Tr. of S. Cal. Int'l Broth. of Elec. Workers-Nat. Elec. Contractors Ass’n Pension Plan v. DC Associates, Inc., 381 Fed.Appx. 650, 652 (9th Cir.2010) (same). A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). See also Found. for Horses and Other Animals v. Babbitt, 154 F.3d 1103, 1106 (9th Cir.1998) (same). When the nonmoving party’s claims are factually implausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citing Blue Ridge Ins. Co." }, { "docid": "5570542", "title": "", "text": "products for sale directly to retailers in plaintiffs distribution area, or anywhere in the United States.” Sam Deck ¶ 8; see also Sam Depo. 30-31. Defendant argues that the court should disregard this evidence as implausible. The Ninth Circuit has held that “[i]f the factual context makes the non-moving party’s claim implausible, then that party must come forward with more persuasive evidence than otherwise would be necessary to show that there is a genuine issue for trial.” Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) and California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1470 (9th Cir.1987)). Implausibility is a high standard. See e.g., Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir.1994), c.f. Stitt v. Williams, 919 F.2d 516, 523-524 (9th Cir.1990). In Stitt, plaintiffs argued that they relied on defendant’s promises in delaying to file suit, thereby invoking an equitable estoppel argument. Id. at 523. The Ninth Circuit held it was implausible to conclude that any reliance on these promises was reasonable when defendant had failed to keep these promises year after year. Id. Summary judgment must be denied, however, where a jury could return a verdict for the non-moving party. United States ex rel. Anderson v. Northern Telecom, 52 F.3d 810, 815 (9th Cir.1995). Here, although a jury could certainly disbelieve Sam Sarkissian’s testimony, his testimony is not so implausible that a jury would, as a matter of law, be compelled to do so. Nor is this a case where the non-moving party has offered “sham” testimony. “[A] court may disregard a ‘sham’ affidavit that a party files to create an issue of fact by contradicting the party’s prior deposition testimony.” Leslie v. Grupo ICA, 198 F.3d 1152, 1157 (9th Cir.1999). Here, Sam Sarkissian’s affidavit is consistent with his prior deposition testimony. In sum, a jury could find that the agreement included a term prohibiting Hagen from selling directly to dealers. b. Implied Covenant of Good Faith and Fair" }, { "docid": "2658691", "title": "", "text": "issue of material fact. City of Tacoma, 332 F.3d at 578; FED. R. CIV. P. 56. Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues. Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir.1982). We also review de novo whether the district court correctly applied - the substantive law. City of Tacoma, 332 F.3d at 578. IV. Discussion A. Summary Judgment in Favor of Loan Originating Defendants The primary issue with respect to the loans in these cases is whether Union and AMP were lenders or were simply acting as brokers for TMS, Empire, and First-Plus. A lender is one who puts money at risk. The touchstone for decision here is whether licensed or unlicensed parties were placing their own njoney at risk at any time during the transactions. The distinction is crucial because Union and AMP were not licensed under the Washington CLA at the time of the transactions at issue. If they were lenders, with their own money at risk of Borrowers’ default, then their loans would be in violation of the usury statute. However, if they were acting merely as brokers, placing only their licensed principals’ money at risk, no such violation occurred. In its August 7, 2002 order granting summary judgment in favor of Union and TMS, the district court relied on Washington case law to apply a three-part test to determine whether a loan originator who closes a loan in its own name is a broker or a lender. Citing National Bank of Commerce of Seattle v. Thomsen, 80 Wash.2d 406, 495 P.2d 332 (1972), the district court found the following criteria to be determinative of a loan originator’s status as a broker, rather than a lender:”(l) whether the originator had a pre-existing relationship with - the lender, such as a credit line; (2) whether the originator received funds' from the lender before or after it dispersed them to the borrower; and (3) whether the borrower was apprized of the type of agreement into which he entered.”" }, { "docid": "19678811", "title": "", "text": "re Jercich), 238 F.3d 1202, 1209 (9th Cir. 2001)). A. Willfulness This case comes on appeal as a result of a summary judgment entered by the Bankruptcy Court. We review a grant of summary judgment de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). i. Summary Judgment Standard In adversary proceedings before the bankruptcy court, the familiar summary judgment standard established in Federal Rule of Civil Procedure 56 applies. See Fed. R. Bankr.P. 7056; North Slope Borough v. Rogstad (In re Rogstad), 126 F.3d 1224, 1227 (9th Cir.1997). Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is “material” only if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact. Id. at 256-57, 106 S.Ct. 2505. The court must view all the evidence in the light most favorable to the nonmoving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001). In response to a properly submitted summary judgment motion, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Henderson v. City of Simi Valley, 305 F.3d 1052, 1055-56 (9th Cir.2002). The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.1991). A court “generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented.” Agosto v. INS," }, { "docid": "15476862", "title": "", "text": "boat trip from St. Thomas to Miami and a four-day train ride from Miami to Los Angeles so he could be home for the birth of his second child. Because he cannot fly, Persaud cannot travel to Saudi Arabia to perform the hajj pilgrimage. STANDARDS Summary judgment is appropriate when there is not a “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed. R.Civ.P. 56(a). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)). DISCUSSION As noted, Plaintiffs allege Defendants have violated Plaintiffs’ Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No Fly List. I. Plaintiffs’ Procedural Due-Process Claims The fundamental requirement of due process is “the opportunity to be heard ‘at a meaningful time in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1979). The Supreme Court has set forth a three-factor balancing test for courts to use when evaluating whether the government has provided due process: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the addi- tional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. A. First Factor: Private Interest Plaintiffs contend the first factor under Mathews has been satisfied because Plaintiffs have a" }, { "docid": "12606560", "title": "", "text": "a petitioner to relief and the petitioner has not been afforded a full and fair evidentiary hearing in state court, either at the time of trial or in a collateral proceeding, a federal habeas court must hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Bibby v. Tard, 741 F.2d 26, 30 (3d Cir. 1984). However, “[t]his is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing.” Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 1632, 52 L.Ed.2d 136 (1977). Just as bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing, see Wacht v. Cardwell, 604 F.2d 1245, 1246 n. 2 (9th Cir. 1979), neither do they provide a basis for imposing upon the state the burden of responding in discovery to every habeas petitioner who chooses to seek such discovery. Under Rule 6(a) of the Rules Governing Habeas Corpus Cases Under § 2254 the district court has discretion to decide the extent to which discovery is appropriate. The Advisory Committee Note to Rule 6 makes clear that prior court approval is required to prevent abuse. Moreover, Rule 2(c) of the Rules Governing Habeas Corpus Cases expressly provides in part that the petitioner “shall set forth in summary form the facts supporting each of the grounds” specified in the petition, (emphasis added). Thus, notice pleading is not countenanced in habeas petitions. See Blackledge, 431 U.S. at 75 & n. 7, 97 S.Ct. at 1629 & n. 7 (quoting Advisory Committee Note to Rule 4). Unless the petition itself passes scrutiny, there would be no basis to require the state to respond to discovery requests. See Rule 4 of the Rules Governing Habeas Corpus Cases (“If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal”). These rules and the judicial interpretation" }, { "docid": "22183508", "title": "", "text": "but may instead “expand the record ... with discovery and documentary evidence.\" Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988) (per curiam) (denying a habeas corpus petitioner’s contention that the district court erred in resolving a claim based on contradictory affidavits and interrogatories without an evidentiary hearing at which oral testimony could be provided). We stated that “[decisions to hold hearings and conduct discovery in [habeas corpus] cases are committed to the [district] court’s discretion.” Id. The district court must only “give the prisoner’s claim ‘careful consideration and plenary processing, including full opportunity for presentation of the relevant facts.’ ” Id. (quoting Blackledge v. Allison, 431 U.S. 63, 82-83, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Other circuits have similarly held that “there is a permissible intermediate step that may avoid the necessity of an expensive and time consuming hearing in every [habeas corpus] case. It may instead be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and, in an appropriate case, even affidavits.” Chang v. United States, 250 F.3d 79, 86 (2nd Cir.2001) (finding no abuse of discretion when the district court dismissed the petitioner’s claim without an evidentiary hearing with live witnesses) (citing Raines v. United States, 423 F.2d 526, 529-30 (4th Cir.1970)); see also Blackledge, 431 U.S. at 81-82, 97 S.Ct. 1621 (“[A]s is now expressly provided in the Rules Governing Habeas Corpus Cases, the district judge ... may employ a variety of measures in an effort to avoid the need for an evidentiary hearing.... In short, it may turn out ... that a full evidentiary hearing is not required.”); Spreitzer v. Peters, 114 F.3d 1435, 1456 (7th Cir.1997) (same). In light of this case law, we conclude that it was within the district court’s discretion to choose a middle path allowing the parties to present evidence through written declarations and limited oral testimony. Williams, however, contends that the district court’s denial of a full evidentiary hearing was an abuse of discretion because his cross-examination of" }, { "docid": "10592682", "title": "", "text": "where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004) (citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)). See also Tr. of S. Cal. Int'l Broth. of Elec. Workers-Nat. Elec. Contractors Ass’n Pension Plan v. DC Associates, Inc., 381 Fed.Appx. 650, 652 (9th Cir.2010) (same). A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). See also Found. for Horses and Other Animals v. Babbitt, 154 F.3d 1103, 1106 (9th Cir.1998) (same). When the nonmoving party’s claims are factually implausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)). The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir.2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id. DISCUSSION I. Plaintiffs claims under FMLA and OFLA and portions of her claim for wrongful discharge. In her Third Amended Complaint Plaintiff alleges the following with respect to her First and Second Claims for violation of FMLA and OFLA: Plaintiff utilized intermittent protected medical leave throughout 2009 approved by her employer, and utilized leave for a serious health condition taking her off work from approximately March 23, 2009 through May 25, 2009. Plaintiff never used more medical leave beyond that to which she was entitled. Defendants interfered with, retaliated and discriminated against Plaintiff for inquiring about and/or invoking her rights under FMLA and/or complaining about medical leave retaliation, by taking adverse employment actions against Plaintiff, including, but not" }, { "docid": "21942456", "title": "", "text": "conviction.” 561 U.S. at 342, 130 S.Ct. 2788. Rather, he seeks only to challenge a new and intervening judgment denying him relief with respect to his sentence. Accordingly, Clayton is not subject to the “second or successive” petition bar imposed by § 2244(b)(2), and he may seek habeas relief from the denial of his resentencing petition. B. The government also argues that alternatively, we should deny Clayton’s application for permission to file a second or successive petition because his claim is not cognizable. We reject this argument, and conclude that cognizability plays no role in our adjudication of such an application, and that it is the province of the district court to consider cognizability of a habeas petition. District courts adjudicating habeas petitions under § 2254 are instructed to summarily dismiss claims that are clearly not cognizable. Rule 4 of .the Rules Governing § 2254 Oases in the United States District Court provides that district courts “must dismiss” a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See, e.g., Nelson v. Biter, 33 F.Supp.3d 1173, 1176-78 (C.D. Cal. 2014) (dismissing a habeas petition deemed not cognizable). Dismissal on the basis of cogniz-ability is appropriate “only where the allegations in the petition are ‘vague [or] conclusory1 or ‘palpably incredible,’ or ‘patently frivolous or false.’ ” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)) (internal citations omitted). A petition may not be cognizable, for example, where the petitioner fails to allege a federal claim. Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000); see also Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)) (holding that federal habeas courts cannot review state court applications of state procedural rules). Rule 4, however, applies only to district courts. See Rules Governing § 2254 Cases in the United States District Court, Rule 4 (instructing the" }, { "docid": "12606559", "title": "", "text": "the State Prison at Dallas, ... have obstructed petitioner’s right of appeal.” App. at 193. In response to the Commonwealth’s motion to dismiss May-berry’s petition as a delayed petition under Rule 9(a) of the Rules Governing Habeas Corpus cases, Mayberry pointed to “the action of the prison authorities at Western Penitentiary and in the Bureau of Correction of Pa., in confiscating my legal papers and law books, holding me incommunicado, denying me access to the courts, transferring me from one solitary confinement cell to another in prisons all over Pennsylvania, and stealing my records and files.” App. at 38. IV. Sufficiency of Allegations We will assume arguendo that if Mayberry could establish the facts alleged, this would excuse exhaustion. We must decide whether these allegations, many made under penalty of perjury, entitled Mayberry to a hearing, or at least to the discovery he sought in the district court. As a general rule in dealing with the merits of a petition for habeas corpus, where there are material facts in dispute which if proven would entitle a petitioner to relief and the petitioner has not been afforded a full and fair evidentiary hearing in state court, either at the time of trial or in a collateral proceeding, a federal habeas court must hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Bibby v. Tard, 741 F.2d 26, 30 (3d Cir. 1984). However, “[t]his is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing.” Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 1632, 52 L.Ed.2d 136 (1977). Just as bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing, see Wacht v. Cardwell, 604 F.2d 1245, 1246 n. 2 (9th Cir. 1979), neither do they provide a basis for imposing upon the state the burden of responding in discovery to every habeas petitioner who chooses to seek such discovery. Under Rule 6(a) of the Rules Governing Habeas Corpus Cases Under §" }, { "docid": "14172392", "title": "", "text": "Federal Correctional Institution in Victorville, California. LEGAL STANDARDS Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists re garding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001). In response to a properly-supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir.2001) (internal quotation and citation omitted). All reasonable inferences from the facts in the record must be drawn in favor of the nonmoving party. Hensley v. Northwest Permanente P.C. Ret. Plan & Trust, 258 F.3d 986, 999 (9th Cir.2001), cert. denied, 534 U.S. 1082, 122 S.Ct. 815, 151 L.Ed.2d 699 (2002). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party’s claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir.1998) (citation omitted). The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin, 261 F.3d at 919. DISCUSSION I. Eighth Amendment To prevail on a claim under the Eighth Amendment for the failure to protect, an inmate must show he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In addition, the inmate must demonstrate the particular defendant acted" } ]

[ { "docid": "23115929", "title": "", "text": "“whether the employee’s speech may be ‘fairly characterized as constituting speech on a matter of public concern.’” Bryson, 888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at 2896-97 (citation omitted)). See also Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). If so, the district court must “weigh[] the employee’s first amendment interests against ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Bryson, 888 F.2d at 1565 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). Should the employee prevail on the balancing test, “the fact-finder determines whether the employee’s speech played a ‘substantial part’ in the government’s decision to demote or discharge the employee.” Id. (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Finally, if the employee shows that the speech was a substantial motivating factor in the employment decision, “the state must prove by a preponderance of the evidence that ‘it would have reached the same decision ... even in the absence of the protected conduct.' ” Id. at 1566 (quoting Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 576). Applying this four-part test, we first examine whether Morgan’s speech related to a matter of “public concern.” Morgan contends that her speech—the complaints of sexual harassment—involves a public concern, because sexual harassment in the workplace is a matter of vital social interest. To fall within the realm of the “public concern,” an employee’s speech must “relat[e] to a[ ] matter of political, social, or other concern to the community.” Connick v. Meyers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Absent extraordinary circumstances, however, First Amendment protection remains unavailable when “a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest....” Id. at 147, 103 S.Ct. at 1690. A court must therefore" } ]

[ { "docid": "17120845", "title": "", "text": "interests — to government employment cases. . For background, see Pickering v. Board of Ed., 391 U.S. 563, 566-68, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The outcome of the Pickering balancing test is a question of law. See e.g., Connick v. Myers, 461 U.S. 138, 150 n. 10, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708 (1983). . In Umbehr, the Court determined “whether, and to what extent, the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.” Id., -U.S. at-, 116 S.Ct. at 2345. Upon holding that the First Amendment protects contractors from such retaliatory termination, it then determined the relevant standard for deciding whether a government contractor’s First Amendment rights had been violated. . In Parks v. City of Warner Robins, 43 F.3d 609 (11th Cir.1995), we recently held that a government employee’s termination (pursuant to an anti-nepotism policy) did not impose a \"significant burden” on either her right to marry or her right to intimate association and, therefore, we reviewed the city’s anti-nepotism policy (as applied to that employee) under the rational basis test. In so doing, we distinguished generally applicable legislative acts from ad hoc executive decisions: Unlike the legislative act embodied in Warner-Robins' anti-nepotism policy, however, the secretary’s reassignment in McCabe [v. Sharrett, 12 F.3d 1558 (1994) ] was a quintessentially executive act. See McKinney v. Pate, 20 F.3d 1550, 1557 n. 9 (11th Cir.1994) (en banc) (distinguishing executive acts, which “characteristically apply to a limited number of persons” and which “typically arise from the ministerial or administrative activities of members of the executive branch” from legislative acts, which “generally apply to a larger segment of ... society\" and which include \"laws and broad-ranging executive regulations.”). Id. at 613 n. 2. Nothing in this opinion is intended to disapprove Parks or to hint that it is no longer the law in this circuit for reviewing legislative acts. . Livas involved the termination of an assistant state’s attorney for political patronage reasons and, accordingly, the Seventh Circuit analyzed that claim" }, { "docid": "10432266", "title": "", "text": "10, 103 S.Ct. 1684, 1690 n. 7, 1692 n. 10, 75 L.Ed.2d 708 (1983); Goffer v. Marbury, 956 F.2d 1045, 1049 (11th Cir.1992). Although we review First Amendment questions de novo, issues of causation in a retaliatory discharge claim present questions of fact. In cases tried before a jury, the jury should decide questions of motive and intent behind a government employment decision. Bryson v. City of Waycross, 888 F.2d 1562, 1566 n. 2 (11th Cir.1989); Sykes v. McDowell, 786 F.2d 1098, 1104-05 (11th Cir.1986). See also Pullmam-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982) (holding that the issue of discriminatory intent in a race discrimination case is a factual question for the trier of fact). Where a district court resolves factual issues by entering judgment as a matter of law, we review that decision de novo, applying the same standards which bound the district court. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th Cir.1994), cert. denied, 1995 US LEXIS 3956, — U.S. -, 115 S.Ct. 2557, 132 L.Ed.2d 811 (1995). A district court may enter judgment as a matter of law if “a party has been fully heard on an issue and there is no legally sufficient eviden-tiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). See Vulcan Painters, Inc. v. MCI Constructors, Inc., 41 F.3d 1457, 1461 (11th Cir.1995). When considering a motion for judgment as a matter of law, the court must evaluate all the evidence, together with any logical inferences, in the light most favorable to the non-moving party. Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 (11th Cir.1995). III. DISCUSSION The threshold legal question of whether the First Amendment protects an employee’s speech is central to, and often dispositive of, most retaliatory discharge cases. See, e.g., Connick, 461 U.S. at 154, 103 S.Ct. at 1694 (holding that employee’s termination did not violate the First Amendment); Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.1993) (same), cert. denied, — U.S. -, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994);" }, { "docid": "11338579", "title": "", "text": "that McRae deprived Appellant of procedural due process by his participation in suspending Appellant’s recreational privileges. Nevertheless, because Appellant does not deny that he was provided notice of the disciplinary charges against him and an opportunity to respond to Ostrout’s charges, we have no difficulty in concluding that Appellant received all the process he was due. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127-28, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990). If Appellant is alleging that the bias of McRae and others deprived him of his right to due process of the law, then his claim is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and its progeny. See McKinney v. Pate, 20 F.3d 1550, 1562-63 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). The district court correctly dismissed Appellant’s claim against McRae because Appellant’s complaint failed to state a claim upon which relief could be granted. E. Farcas Appellee David Farcas was the superintendent of MCI in late 1990. Appellant alleges that Farcas acquiesced in the suspension of his recreational privileges and the other alleged wrongs in order to retaliate for Appellant’s prior litigation and because of his race. Appellant also charges that Farcas refused to control the prison’s insect population or provide Appellant with an adequate vegetarian diet. Farcas denies having any racist or retaliatory animus towards Appellant and maintains that his actions in approving Appellant’s suspension were entirely proper. Farcas also relies on records indicating that the prison offered an adequate vegetarian diet and made regular efforts to control insects in the prison buddings. As explained above, Appellant’s allegations of racial bias and retaliatory animus state a claim under the First and Fourteenth Amendments. Appellant’s additional claims regarding insect control and inadequate diet at MCI also state a valid constitutional claim. When prisoners are denied “the minimal civilized measure of life’s necessities,” the Eighth Amendment is violated. Wilson, 501 U.S. at 298, 111 S.Ct. at 2324 (quoting Rhodes v. Chapman, 452 U.S. 337, 346-47, 101 S.Ct. 2392," }, { "docid": "12239507", "title": "", "text": "determine if the allegations provide for relief on any possible theory.”). Our inquiry does not end, however, with a determination that the complaint provided adequate notice to the appellees of an equal protection claim. Because the district court granted summary judgment after allowing the parties further to refine their arguments, as opposed to dismissing Lyes’s complaint, we must ask, in light of the pleadings before the district court on summary judgment, whether Lyes sufficiently expressed her equal protection theory to the court. See Adams v. James, 784 F.2d 1077, 1081 (11th Cir.1986) (remanding after summary judgment where appellants identified actionable theory on appeal and the “pleadings [were] broad enough to encompass such a theory”). Indeed, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.) (citation omitted), cert. denied, — U.S.-, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994) (holding that district court “could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment”). Nevertheless, the pleadings before the court on summary judgment, like all pleadings, “shall be so construed as to do substantial justice.” Fed.R.Civ.P. 8(f). Appellees, ignoring the equal protection implications of Lyes’s complaint, moved for summary judgment on the ground that Lyes did not state an actionable due process claim in light of McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). Specifically, they argued that Lyes’s job was, at best, a state-created property right, and that, after McKinney, deprivations of state-created rights do not offend the substantive component of due process. Lyes" }, { "docid": "10432276", "title": "", "text": "First Amendment. Appellant’s suit states a valid claim for relief. B. The Retaliatory Discharge Claim Appellant argues that the district court erred by resolving factual disputes in favor of Appellees and ignoring evidence creating a sufficient basis for a reasonable jury to find for Appellant. Appellees respond that the district court correctly found that the evidence, when viewed in the light most favorable to Appellant, is legally insufficient for a reasonable jury to rule in favor of Appellant. The First Amendment protects government employees from some, but not all, restraints on their right of free expression. See, e.g., United States v. National Treasury Employees Union, — U.S. -, -, 115 S.Ct. 1003, 1012, 130 L.Ed.2d 964 (1995); Pickering v. Board of Ed., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). This Circuit examines First Amendment retaliatory discharge claims under the four part test announced in Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989). Tindal, 32 F.3d at 1539; Morgan, 6 F.3d at 754. The Bryson test examines (1) whether the employee’s speech involves a matter of public concern, (2) whether the employee’s interest in speaking outweighs the government’s legitimate interest in efficient public service, (3) whether the speech played a substantial part in the government’s challenged employment decision, and (4) whether the government would have made the same employment decision in the absence of the protected conduct. Bryson, 888 F.2d at 1565-66. The first two elements of the Bryson test are questions of law designed to determine whether the employee’s speech is protected by the First Amendment. Appellees do not argue that Appellant’s opposition to the paramedic cuts and PSO program are not protected by the First Amendment, and the record supports a conclusion that this activity is protected. Appellant’s speech concerns political matters at the core of activity protected by the First Amendment. See generally, McIntyre v. Ohio Elections Comm’n, — U.S. -,- - -, 115 S.Ct. 1511, 1518-19, 131 L.Ed.2d 426 (1995) (explaining that speech on public issues “occupies the core of the protection afforded by the First Amendment”). Few subjects are" }, { "docid": "22895886", "title": "", "text": "2891, 97 L.Ed.2d 315 (1987). This circuit employs a four-part test to determine whether a state (or, as in this case, a city) has done so. First, a court must determine whether the employee’s speech may be fairly characterized as constituting speech on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Rankin, 483 U.S. at 384, 107 S.Ct. at 2896; Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989)). Speech addresses a matter of public concern when the speech can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146, 103 S.Ct. at 1690.... Second, a court must weigh the employee’s “[F]irst [AJmendment interests” against the interest of the City, as an employer, “in promoting the efficiency of the public services it performs through its employees.” Morgan, 6 F.3d at 754. In performing this balancing test, a court must consider several factors: (1) whether the speech at issue impeded the government’s ability to perform its duties effectively; (2) the manner, time and place of the speech; and (3) the context within which the speech was made. Connick, 461 U.S. at 151-55, 103 S.Ct. at 1692-94; Morales v. Stierheim, 848 F.2d 1145, 1149 (11th Cir.1988), cert. denied, 489 U.S. 1013, 109 S.Ct. 1124, 103 L.Ed.2d 187 (1989).... Third, a court must determine whether the speech in question played a “substantial part” in the government’s decision to discharge the employee.... Fourth, if the employee shows that the speech was a substantial motivating factor in the decision to discharge him, the City must prove by a preponderance of the evidence that it would have reached the same decision in the absence of the protected conduct. Fikes v. City of Daphne, 79 F.3d 1079, 1083-85 (11th Cir.1996). We will assume without deciding that Rice-Lamar’s expression constitutes speech on a matter of public concern, and dispose of" }, { "docid": "11039114", "title": "", "text": "Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir.1991) (citations omitted). The question therefore becomes whether a substantive due process cause of action exists where an executive actor deprived Appellant of a state-created property right. Appellant cites no authority to sup port the existence of such a claim, and we find considerable authority to the contrary. This Court held en banc that a plaintiff did not present a substantive due process claim when he alleged an executive deprivation of a state-created right. McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). In McKinney, an employee alleged that the county arbitrarily and capriciously deprived him of his substantive due process right to employment when it fired him. Id. at 1554-55. McKinney admitted that he was provided a procedurally adequate pre-termination hearing, but charged that the hearing was fundamentally biased because of conflicts with other city officials. Id. at 1555. In analyzing McKinney’s claim, the Court first noted that any property interest in employment was a state-created right. Id. at 1556. The Court held that rights created by state law (e.g., tort and employment law) are protected by procedural, not substantive, due process because substantive due process protects only rights created by the Constitution. Id. Consequently, McKinney presented no substantive due process claim. See also Collins, 503 U.S. at 128, 112 S.Ct. at 1070; Regents of the Univ. of Mich. v. Ewing, 474 U.S. at 226, 106 S.Ct. at 514; Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976). We recently reiterated this logic in the context of state education rights. C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383 (11th Cir.1996). In accordance with school board policy and procedures, several students were suspended after telephone conferences with parents. Id. at 385-87. The Court held that because the decision to suspend a student is an executive act, any deprivation of the state-created right to attend school is protected only by the guarantee of procedural due process. Id. Moreover, we have briefly addressed" }, { "docid": "10432275", "title": "", "text": "117 L.Ed.2d 261 (1992)). In contrast, the First Amendment’s text and two centuries of free speech tradition and jurisprudence provide ample guideposts for courts examining retaliatory discharge claims. The existence of manageable First Amendment standards also explains why retaliatory discharge claims do not raise the same “Monday morning quarterbacking” problems associated with open-ended substantive due process suits. See McKinney, 20 F.3d at 1564. Unlike a vague standard examining whether the termination was “for an improper motive ... pretextual, arbitrary and capricious, and ... without any rational basis,” Adams v. Sewell, 946 F.2d 757, 766 (11th Cir.1991) (quoting Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982)), the First Amendment retaliatory discharge standard minimizes the danger that state employees will use § 1983 suits as a “sword” to force their employers to retain unsuitable employees. See McKinney, 20 F.3d at 1564. We hold that state employees retain a federal cause of action under the First Amendment when they allege that government employment decisions were taken in an attempt to chill expression protected by the First Amendment. Appellant’s suit states a valid claim for relief. B. The Retaliatory Discharge Claim Appellant argues that the district court erred by resolving factual disputes in favor of Appellees and ignoring evidence creating a sufficient basis for a reasonable jury to find for Appellant. Appellees respond that the district court correctly found that the evidence, when viewed in the light most favorable to Appellant, is legally insufficient for a reasonable jury to rule in favor of Appellant. The First Amendment protects government employees from some, but not all, restraints on their right of free expression. See, e.g., United States v. National Treasury Employees Union, — U.S. -, -, 115 S.Ct. 1003, 1012, 130 L.Ed.2d 964 (1995); Pickering v. Board of Ed., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). This Circuit examines First Amendment retaliatory discharge claims under the four part test announced in Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989). Tindal, 32 F.3d at 1539; Morgan, 6 F.3d at 754. The Bryson test examines (1) whether" }, { "docid": "10432267", "title": "", "text": "2557, 132 L.Ed.2d 811 (1995). A district court may enter judgment as a matter of law if “a party has been fully heard on an issue and there is no legally sufficient eviden-tiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). See Vulcan Painters, Inc. v. MCI Constructors, Inc., 41 F.3d 1457, 1461 (11th Cir.1995). When considering a motion for judgment as a matter of law, the court must evaluate all the evidence, together with any logical inferences, in the light most favorable to the non-moving party. Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 (11th Cir.1995). III. DISCUSSION The threshold legal question of whether the First Amendment protects an employee’s speech is central to, and often dispositive of, most retaliatory discharge cases. See, e.g., Connick, 461 U.S. at 154, 103 S.Ct. at 1694 (holding that employee’s termination did not violate the First Amendment); Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.1993) (same), cert. denied, — U.S. -, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994); Bryson, 888 F.2d at 1567 (same); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989) (same). This case is unusual because the threshold question of First Amendment protection is not disputed. Instead, Appellees argue: (1) that Appellant lacks a First Amendment claim after this Court’s decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); and (2) that no reasonable jury could find that First Amendment speech was a substantial factor in Appellees’ decision to terminate Appellant. A First Amendment Retaliatory Discharge Claims after McKinney v. Pate Appellees argue that McKinney v. Pate, 20 F.3d 1550, a decision that “altered the legal landscape” of this Circuit, Tindal v. Montgomery County Comm’n, 32 F.3d 1535, 1539 (11th Cir.1994), precludes Appellant’s First Amendment retaliatory discharge claim. We disagree. McKinney involved a county building official’s § 1983 suit against his immediate superior and members of the board of county commissioners. McKinney, 20 F.3d at 1554. The plaintiff, McKinney, was allegedly terminated for" }, { "docid": "10432265", "title": "", "text": "in Beckwith [and] the decision to terminate Beckwith had nothing to do with Beckwith’s opposition to the elimination of the paramedic program or the implementation of the [PSO] Program.” This appeal follows. II. STANDARD OF REVIEW Marking the line between speech protected by the First Amendment and speech which the state may legitimately regulate presents a question of law. See New York Times v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964). Courts “must ‘make an independent examination of the whole record’ ” to ensure that no “forbidden intrusion on the field of free expression” has occurred. Id. at 285, 84 S.Ct. at 729 (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963)). Thus, where an employee claims that government employment decisions were made in retaliation for the exercise of First Amendment rights, we conduct a de novo review on the question of whether the First Amendment protects the employee’s conduct. Connick v. Myers, 461 U.S. 138, 148 n. 7, 150 n. 10, 103 S.Ct. 1684, 1690 n. 7, 1692 n. 10, 75 L.Ed.2d 708 (1983); Goffer v. Marbury, 956 F.2d 1045, 1049 (11th Cir.1992). Although we review First Amendment questions de novo, issues of causation in a retaliatory discharge claim present questions of fact. In cases tried before a jury, the jury should decide questions of motive and intent behind a government employment decision. Bryson v. City of Waycross, 888 F.2d 1562, 1566 n. 2 (11th Cir.1989); Sykes v. McDowell, 786 F.2d 1098, 1104-05 (11th Cir.1986). See also Pullmam-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982) (holding that the issue of discriminatory intent in a race discrimination case is a factual question for the trier of fact). Where a district court resolves factual issues by entering judgment as a matter of law, we review that decision de novo, applying the same standards which bound the district court. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th Cir.1994), cert. denied, 1995 US LEXIS 3956, — U.S. -, 115 S.Ct." }, { "docid": "10432268", "title": "", "text": "Bryson, 888 F.2d at 1567 (same); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989) (same). This case is unusual because the threshold question of First Amendment protection is not disputed. Instead, Appellees argue: (1) that Appellant lacks a First Amendment claim after this Court’s decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); and (2) that no reasonable jury could find that First Amendment speech was a substantial factor in Appellees’ decision to terminate Appellant. A First Amendment Retaliatory Discharge Claims after McKinney v. Pate Appellees argue that McKinney v. Pate, 20 F.3d 1550, a decision that “altered the legal landscape” of this Circuit, Tindal v. Montgomery County Comm’n, 32 F.3d 1535, 1539 (11th Cir.1994), precludes Appellant’s First Amendment retaliatory discharge claim. We disagree. McKinney involved a county building official’s § 1983 suit against his immediate superior and members of the board of county commissioners. McKinney, 20 F.3d at 1554. The plaintiff, McKinney, was allegedly terminated for a variety of legitimate reasons, generally depicting McKinney as a deficient worker. Id. McKinney’s federal claim “alleged that the various charges against [him] were pretextual and that [the defendants] therefore fired McKinney without reason.” Id. at 1555. According to McKinney, this “violated his . ‘constitutional employment rights’ and consequently denied him substantive due process.” Id. The question presented to the en banc McKinney court was “whether, under the Fourteenth Amendment, a government employee possessing a state-created property interest in his employment states a substantive due process claim, rather than a procedural due process claim, when he alleges that he was deprived of that employment interest by an arbitrary and capricious non-legislative government action.” Id. at 1553. Analyzing the relevant Supreme Court precedent, the Court concluded that “[b]ecause employment rights are state-created rights and are not ‘fundamental’ rights created by the Constitution, they do not enjoy substantive due process protection.” Id. at 1560. The Court held “that, in non-legislative cases, only procedural due process claims are available to pretextually terminated employees. Thus, we conclude that our" }, { "docid": "12239508", "title": "", "text": "599 (11th Cir.) (citation omitted), cert. denied, — U.S.-, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994) (holding that district court “could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment”). Nevertheless, the pleadings before the court on summary judgment, like all pleadings, “shall be so construed as to do substantial justice.” Fed.R.Civ.P. 8(f). Appellees, ignoring the equal protection implications of Lyes’s complaint, moved for summary judgment on the ground that Lyes did not state an actionable due process claim in light of McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). Specifically, they argued that Lyes’s job was, at best, a state-created property right, and that, after McKinney, deprivations of state-created rights do not offend the substantive component of due process. Lyes responded by distinguishing McKinney as involving only a state law claim; she claimed that, unlike herself, the plaintiff in McKinney “was not suing for a violation of any civil rights,” that is, “fundamental rights which are created only by the constitution.” Plaintiff’s Response to Defendant’s Motion to Dismiss at 10 (emphasis omitted). Although Lyes and her counsel would have been well-served to have identified her federal civil rights claim as an equal protection claim at this juncture, we conclude that the above-quoted statements should have alerted the district court to her continued reliance upon an equal protection theory. Indeed, the district court realized that Lyes opposed summary judgment because of an asserted constitutional right against gender discrimination: It appears that Lyes is arguing that she has a fundamental right not to be discriminated against on the basis of her gender, and that this right rose to the level of a property interest when she was terminated for discriminatory reasons. Lyes, however, fails in her attempt to avoid the consequences of McKinney. The Court is not" }, { "docid": "22786019", "title": "", "text": "cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983). 1. First amendment free speech claim Busby alleged in Count III that appellees unconstitutionally violated her first amendment free speech rights. She claimed that appellees fired her in retaliation for publicizing malfeasance by her supervisors, and for complaining about fumes emitted from the golf cart in which she was required to ride. Additionally, Busby claimed that Pa-den acted to cause her termination in order to prevent the discovery of Paden’s extramarital affairs. The relevant question in this case is whether a reasonable OPD supervisor could have believed appellees’ actions in disciplining Busby for failing to follow OPD complaint procedure to be lawful, in light of clearly established law. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. “[Appellees’] subjective belief[s] about [their actions] are irrelevant.” Id. In determining whether a reasonable person would have known that appellees’ actions violated the first amendment, we must examine the applicable law regarding protection of employee speech under the first amendment, enunciated by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and applied in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Then, we must determine, in light of Pickering and Connick, whether a reasonable defendant could believe that his actions were lawful. We make this last determination in accordance with our circuit’s test in Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323-24 (11th Cir.1989), for determining qualified immunity in this context. The Supreme Court has never established a bright-line test for determining when a public employee may be disciplined in response to that employee’s speech. Dartland, 866 F.2d at 1323. Instead, Pickering established a case-by-case balancing of interests test. Id. Although “a State cannot condition public employment on a basis that infringes the employee’s consti tutionally protected interest in freedom of expression,” Connick, 461 U.S. at 142, 103 S.Ct. at 1687, an employee’s interest as a citizen in commenting on matters of public concern must be balanced against the state’s interest as an" }, { "docid": "1508448", "title": "", "text": "MEMORANDUM OPINION AND ORDER BLACK, District Judge. THIS MATTER comes before the Court for consideration of three separate motions for summary judgment filed by Defendants (Docs. 37, 46, and 50). The Court has reviewed the submissions of the parties and the relevant law, and, for the reasons set forth below, finds that the first motion for summary judgment should be granted in part and denied in part, and the latter two motions should be denied. This is a civil rights lawsuit arising out of the termination of Plaintiffs employment by Defendants. Plaintiff claims he was fired, in violation of the First Amendment, due to his political affiliation and associations, as well as his exercise of the right to free speech. Defendants maintain they had an absolute right to terminate Plaintiffs employment on the basis of his political affiliation, and argue his right to free speech was not violated by their actions. “Summary judgment is proper 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.” Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir.1995) (quoting Fed.R.Civ.P. 56(c)). “All facts and reasonable inferences must be construed in the light most favorable to the nonmoving party.” Id. On a motion for summary judgment, the issue is “not whether [the court] thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Nevertheless, a jury question does not exist because of the presence of a mere scintilla of evidence; rather, there must be a conflict in substantial evidence to create a jury question.” Walker v. NationsBank of Florida, 53 F.3d 1548, 1555 (11th Cir.1995). The Court will consider Defendants’ motions for summary judgment in light of these standards. Free Speech Claims" }, { "docid": "14867884", "title": "", "text": "800, 817-18, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The question of qualified immunity should be resolved in the defendant's favor on a motion to dismiss if the plaintiff fails to allege the violation of a clearly established constitutional right. Siegert, 500 U.S. at 232-33, 111 S.Ct. at 1793-94. For a constitutional right to be clearly established so that qualified immunity does not apply, \"[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.\" Anderson, v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). In determining whether Williams has alleged a violation of a clearly established right, we look to the prevailing First Amendment law at the time of the defendants' alleged conduct. Under that law, a state employer could not retaliate against a state employee for engaging in constitutionally protected speech. Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Bryson, v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). For a public employee's speech to be constitutionally protected, the employee's interest in commenting on matters of public concern must outweigh the employer's interest in promoting efficiency by suppressing the speech. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). Because the law in this area employs a balancing test rather than a bright-line rule to determine when a public employee's right to free speech is violated, \"the employer is entitled to immunity except in the extraordinary case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful.\" Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989). In performing the Pickering balancing test, a threshold question is whether the employee's speech involves a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). The district court erred in holding that, under clearly established law, Williams's alleged speech involves a matter of public concern, thereby triggering First Amendment" }, { "docid": "17789908", "title": "", "text": "claimed entitlement to qualified immunity, Tindal must proffer evidence that — when viewed in the light most favorable to her— demonstrates not only that Butler violated her clearly established First Amendment rights (see Part 1), but also that a reasonable government official would have been aware of those rights (see Part 2). -, It is axiomatic that “[a] state may not demote or discharge a public employee in retaliation for protected speech.” Morgan v. Ford, 6 F.3d 750, 753-54 (11th Cir.1993) (indirectly citing Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987)) (emphasis added), cert. denied, — U.S. -, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994). The record supports Tindal’s claim that she indeed suffered retaliatory action (dismissal) as a result of her speech (her affidavit and trial testimony against Sheriff Butler in the diserimination/harassment suit); a trier of fact could conclude that the Sheriff had no other cause for firing her. Butler’s alleged retaliation constitutes a violation of the First Amendment, however, only if Tindal’s speech was “protected.” We employ a four-part test to determine whether an employer’s action (such as dismissal) constitutes an illicit retaliation for protected speech in violation of the First Amendment. See Bryson v. City of Waycross, 888 F.2d 1562, 1565-66 (11th Cir.1989). (1) The first part of the Bryson test asks “whether [Tindal’s] speech may be ‘fairly characterized as constituting speech on a matter of public concern.’ ” Bryson, 888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at 2897 (citation omitted)). If Tmdal’s speech touches on items of private concern, not on items of public relevance, it warrants no First Amendment protection. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). We have held that no First Amendment protection attaches to speech that — for personal benefit — exposes personally suffered harassment or discrimination. See, e.g., Morgan, 6 F.3d at 754-55 (collecting eases). In the present case, however, Tindal’s speech took place in a public forum (a federal district court proceeding), not in a private context; it also" }, { "docid": "22895885", "title": "", "text": "not rest upon the mere allegations or denials of the adverse party’s pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the non-moving party fails to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” then the court must enter summary judgment for the moving party. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In determining whether genuine issues of material fact exist, we resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). III. We first address Rice-Lamar’s First Amendment free speech claim. Second, we address her claim that she was discriminated against on the basis of her race and sex. A. It is well established that a state may not discharge a public employee in retaliation for public speech. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). This circuit employs a four-part test to determine whether a state (or, as in this case, a city) has done so. First, a court must determine whether the employee’s speech may be fairly characterized as constituting speech on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Rankin, 483 U.S. at 384, 107 S.Ct. at 2896; Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989)). Speech addresses a matter of public concern when the speech can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146, 103 S.Ct. at 1690.... Second, a court must weigh the employee’s “[F]irst [AJmendment interests” against the interest of the City, as an employer, “in promoting the efficiency of the public services it performs through its employees.” Morgan," }, { "docid": "1830208", "title": "", "text": "no more than an internally administered policy of the Clerk of Superior Court like that at issue in Wofford. 864 F.2d at 119-20. Again, the Court concludes that such a policy creates no property interest. SUBSTANTIVE DUE PROCESS The theory of substantive due process provides no claim for violation of state created rights. McKinney v. Pate, 20 F.3d 1550, 1555-56 (11th Cir.1994) (en banc decision overruling prior case law). Plaintiffs First Amendment rights are incorporated into the Fourteenth Amendment’s due process clause to protect her against state action. McKinney v. Pate, 985 F.2d 1502, 1509 & n. 5 (11th Cir.1993) (Tjoflat, J., specially concurring in panel decision) (surveying circuit cases), rev’d in part and affd in part, 20 F.3d 1550 (11th Cir.1994) (en bane). However, these claims will be analyzed within the First Amendment framework, and not as an independent substantive due process violation. See Collins v. City of Harker Heights, — U.S.-,---, 112 S.Ct. 1061, 1068-69, 117 L.Ed.2d 261 (1992). FIRST AMENDMENT CLAIMS Political Patronage Theory and Terry v. Cook In the original round of motions Plaintiff argued that this case should be evaluated as a political patronage case using the principles of Rutan v. Republican Party, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Plaintiff moved for partial summary judgment based upon those principles. Defendants argued that this case should be evaluated under the free expression principles of Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The Court noted that there was a circuit split on how to evaluate the issue, but that the Eleventh Circuit provided clear guidance in Terry v. Cook. 866 F.2d 373, 376-77 (11th Cir.1989). The Eleventh Circuit, while acknowledging that overlap may occur, emphasized the need to “retain the distinctions between” the two types of cases. Terry, 866 F.2d at 377. Although the" }, { "docid": "14867885", "title": "", "text": "(11th Cir.1989). For a public employee's speech to be constitutionally protected, the employee's interest in commenting on matters of public concern must outweigh the employer's interest in promoting efficiency by suppressing the speech. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). Because the law in this area employs a balancing test rather than a bright-line rule to determine when a public employee's right to free speech is violated, \"the employer is entitled to immunity except in the extraordinary case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful.\" Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989). In performing the Pickering balancing test, a threshold question is whether the employee's speech involves a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). The district court erred in holding that, under clearly established law, Williams's alleged speech involves a matter of public concern, thereby triggering First Amendment protection. We have not been provided nor has our research revealed any case holding that a professor's in-house criticism of a particular text is constitutionally protected speech. Decisions addressing analogous issues suggest the law to be otherwise. A professor's criticism of a required course syllabus was held not to be a matter of public concern in Ballard v. Blount, 581 F.Supp. 160 (N.D.Ga.1983), aff'd, 734 F.2d 1480 (11th Cir.), cert. denied, 469 U.S. 1086, 105 S.Ct. 590, 83 L.Ed.2d 700 (1984): The plaintiff claims that this speech was related to a matter of public concern, since the decision regarding the syllabus would have an eventual, derivative effect on the freshman English students. Taken to its logical conclusion, the plaintiffs argument means that any time ,a person's speech will have an effect on the public, regardless of how small or unlikely that effect may be, that speech relates to a matter of public concern. This was a specific concern of the Connick Court, and the Court wisely rejected this identical argument. 581 F.Supp. at 164 (citing" }, { "docid": "5561012", "title": "", "text": "summary judgment after Bell failed to timely respond. Bell then filed a Fed. R.Civ.P. 60(b) motion asking the court to set aside the defendants’ summary judgment based on excusable neglect. After the defendants filed an opposition brief, the court directed the parties to file supplemental briefs addressing the merits of Bell’s due process claims in light of this Court’s recent en banc decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). The district court denied Bell’s motion for relief from judgment, holding that even if it were inclined to set aside the judgment based on excusable neglect, there was no need to do so because Bell could raise no genuine issue of material fact in opposition to the summary judgment motion. It held that (1) pursuant to McKinney, Bell’s substantive due process claim fails as a matter of law; (2) because Alabama has available a satisfactory means by which Bell can seek redress for any procedural due process deprivation, he does not have a cognizable procedural due process claim, and (3) there was no state law •wrongful discharge claim. Bell argues that McKinney is not dispositive of his procedural due process claim. In McKinney, the plaintiff based his due process claim on the alleged bias of the decision maker at his pretermination hearing. The en banc court held that the alleged wrongful discharge of an employee by a state actor does not give rise to a substantive due process claim but instead implicates only procedural due process. The Court determined that the State of Florida’s remedy for a biased decision maker, review by Florida courts, satisfied due process. Bell attempts to distinguish McKinney in three ways. First, Bell asserts here that Alabama courts do not offer the same “thorough, almost de novo, review” of Florida’s circuit courts. Alabama courts, however, like Florida courts, review employment termination proceedings both to determine whether they are supported by substantial evidence and to see that the proceedings comport with procedural due process. See, e.g., Ex Parte Tuskegee, 447 So.2d 713 (Ala. 1984);" } ]

[ { "docid": "22831967", "title": "", "text": "a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Furthermore, a state court’s factual findings are presumed correct, unless rebutted by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Appellant does not dispute the factual findings of the Georgia courts. Therefore, neither § 2254(d)(2) nor § 2254(e)(1) is relevant to our inquiry. Rather, pursuant to § 2254(d)(1), Appellant challenges the legal rulings of the Georgia courts. The “contrary to” and “unreasonable- application” clauses of § 2254(d)(1) are separate bases for reviewing a state court’s decisions. See Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). A state court decision is “contrary to” clearly established federal law if either (1) the state court applied a rule that contradicts the governing law set forth by Supreme Court case law, or (2) when faced with materially indistinguishable facts, the state court arrived at a result different from that reached in a Supreme Court case. See Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.2000). A state court conducts an “unreasonable application” of clearly established federal law if it identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner’s case. See id. An unreasonable application may also occur if a state court unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context. See id. Notably, an “unreasonable application” is an “objectively unreasonable” application. See Williams, 529 U.S. at 412, 120 S.Ct. at 1523. Lastly, § 2254(d)(1) provides a measuring stick for federal habeas courts reviewing state court decisions. That measuring" } ]

[ { "docid": "23466410", "title": "", "text": "law After Musladin, only if we answer affirmatively the threshold question as to the existence of clearly established federal law, may we ask whether the state court decision is either contrary to or an unreasonable application of such law. A state-court decision is contrary to clearly established federal law if: (a) “the state court applies a rule that contradicts the governing law set forth in Supreme Court cases”; or (b) “the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent.” Maynard, 468 F.3d at 669 (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405, 120 S.Ct. 1495). “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ” Williams, 529 U.S. at 405, 120 S.Ct. 1495 (citation omitted). A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts. Id. at 407-08, 120 S.Ct. 1495. Additionally, we have recognized that an unreasonable application may occur if the state court either unreasonably extends, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply. Carter, 347 F.3d at 864 (quoting Valdez, 219 F.3d at 1229-30). We refer to these two analytic strands, respectively, as the “application of legal principle,” and the “extension of legal principle,” Williams, 529 U.S. at 408-09, 120 S.Ct. 1495, components of the “unreasonable application” prong of § 2254(d)(1). As to this prong, the ultimate focus of the inquiry is whether the state court’s application of the clearly established federal law is objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Consequently, the Supreme Court has concluded that although this standard does not require all reasonable jurists to agree that the state court was unreasonable, an unreasonable application constitutes more than an incorrect application of federal law. Williams, 529 U.S. at" }, { "docid": "5210160", "title": "", "text": "the Supreme Court of the United States’ or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Pinchon v. Myers, 615 F.3d 631, 638-39 (6th Cir.2010) (quoting 28 U.S.C. § 2254(d)(1) and (2)), cert. denied, — U.S. -, 131 S.Ct. 2151, 179 L.Ed.2d 938 (2011). “A state-court decision is contrary to clearly established federal law if the state court applies a rule that contradicts the governing law set forth in the Supreme Court’s cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent.” Joseph, 469 F.3d at 449-50 (brackets, citation, and internal quotation marks omitted). On the other hand, a state-court decision involves an unreasonable application of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case,” Williams v. Taylor, 529 U.S. 362, 407-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), or if it “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context,” Joseph, 469 F.3d at 450 (citation and internal quotation marks omitted). A state court decision will involve an “unreasonable application” of clearly established federal law, however, only if the state court’s decision was “objectively unreasonable,” and not merely incorrect. Williams, 529 U.S. at 409-10, 120 S.Ct. 1495 (internal quotation marks omitted). AEDPA’s deferential standard of review “applies only to any claim that was adjudicated on the merits in [sjtate court proceedings.” Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir.2007) (citation and internal quotation marks omitted), cert, denied, 552 U.S. 1118, 128 S.Ct. 919, 169 L.Ed.2d 761 (2008). Therefore, our analysis under § 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, — U.S.-, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). The Supreme Court held in Jackson that in determining whether the evidence was sufficient, “the" }, { "docid": "23442028", "title": "", "text": "decision is contrary to Federal law if “the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law,” or “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court].” Williams, 529 U.S. at 405, 120 S.Ct. 1495. Thus, the “contrary to” prong requires a direct and irreconcilable conflict with Supreme Court precedent. Second, § 2254(d)(1) provides that a state-court decision might offend clearly established Federal law in a manner actionable under AEDPA where the state-court decision is an unreasonable application of Supreme Court precedent. A state-court decision is an “unreasonable application” of Supreme Court precedent if “the state court identifies the correct governing legal rule from th[e Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. It is not, however, “an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by th[e Supreme] Court.” Richter, 131 S.Ct. at 786 (alteration omitted). Because, like state courts, we have responsibility for direct review of federal criminal appeals, we may have developed our own body of constitutional law independent of the Supreme Court. A state-court decision that we determine to be inconsistent with our cases is not necessarily “objectively unreasonable” and therefore an unreasonable application of clearly established Federal law “as determined by the Supreme Court.” Id.; see also Marshall v. Rodgers, 133 S.Ct. at 1450-51 (noting the division of authority between the state court and the federal circuit court, expressing no view on the merits of the underlying claim, and reversing the grant of habeas). The deferential standard imposed under AED-PA cloaks a state court’s determination with reasonableness, so long as" }, { "docid": "2080843", "title": "", "text": "v. Scully, 826 F.2d 1192, 1195 (2d Cir.1987). IV. The “Unreasonable Application” Standard Habeas corpus relief under 28 U.S.C. § 2254 is warranted only when (1) “the state court identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case”; or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495 (opinion of O’Connor, /.). In asking “whether the state court’s application of clearly established federal law was objectively unreasonable,” id. at 409, 120 S.Ct. 1495, we search for “[s]ome increment of incorrectness beyond error.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000). This “increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (citation and internal quotation marks omitted). We conclude for reasons stated below that Jenkins has indeed identified an unreasonable application of federal law in the Appellate Division’s denial of relief under Napue and Giglio. We thus need not address whether what the district court recognized to be the more stringent standard of Darden and Donnelly would be met under AEDPA deference to the Appellate Division’s decision. V. The Unreasonable Application of Napue and Giglio “[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.” Giglio, 405 U.S. at 153, 92 S.Ct. 763 (citation and internal quotation marks omitted); accord United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”) (internal citations omitted); Napue, 360 U.S. at 269, 79 S.Ct. 1173" }, { "docid": "7436730", "title": "", "text": "it involved an unreasonable application of such law, § 2254(d)(1); or that it was based on an unreasonable determination of the facts in light of the record before the state court, § 2254(d)(2). Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (internal quotation marks and citation omitted). The “only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision.” Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). If Supreme Court “cases give no clear answer to the question presented, ... it cannot be said that the state court unreasonably applied clearly established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (internal quotation marks omitted). In other words, “ ‘[i]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme Court].’ ” Richter, 131 S.Ct. at 786 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). In cases where a petitioner identifies clearly established federal law and challenges the state court’s application of that law, our task under AEDPA is not to decide whether a state court decision applied the law correctly. See id. at 785. Rather, we must decide whether the state court decision applied the law reasonably. See id. (“ ‘[A]n unreasonable application of federal law is different from an incorrect application of federal law.’ ” (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000))). If the state court applied the law reasonably, we must deny relief. See id. Thus, we grant relief only “in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” Id. at 786. DISCUSSION I. Dual Juries" }, { "docid": "2257982", "title": "", "text": "writ. Hereford v. Warren, 486 F.Supp.2d 659 (E.D.Mich.2007). Michigan appeals, and we now reverse the district court. II. We review de novo the district court’s decision granting habeas relief. Dyer v. Bowlen, 465 F.3d 280, 283-84 (6th Cir.2006). Because Hereford filed his habeas petition after 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs his appeal. Under AEDPA, we must presume correct the state court’s factual findings unless Hereford rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Moreover, AEDPA prohibits a federal court from granting a writ of habeas corpus for any claim adjudicated on the merits in state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” Id. § 2254(d)(1). This case implicates § 2254(d)(l)’s “unreasonable application” clause. Under this clause, we cannot grant relief unless the state court “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the [petitioner’s] case,” or “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Our task is not to determine whether the state court reached the correct outcome, but rather to determine whether the court’s application of clearly established federal law is objectively unreasonable — “a substantially higher threshold.” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). AEDPA also restricts the body of law a habeas court may consider. The Supreme Court in Williams explained that “clearly established Federal law” in § 2254(d) “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). That" }, { "docid": "1846857", "title": "", "text": "646, 649 (5th Cir.2005). “A finding is clearly erroneous only if it is implausible in the light of the record considered as a whole.” Rivera v. Quarterman, 505 F.3d 349, 361-63 (5th Cir.2007). This case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a federal court may not grant habeas relief after an adjudication on the merits in a state court proceeding unless the adjudication of the claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The Supreme Court has “made clear that the ‘unreasonable application’ prong of § 2254(d)(1) permits a- federal habeas court to grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quotations omitted). “In other words, a federal court may grant relief when a state court has misapplied a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Id. However, “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was., incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Further, “because the Strickland standard [the standard applicable to a claim for ineffective assistance of counsel] is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). Under § 2254(d)(2), “a federal habeas court must find the state-court conclusion ‘an unreasonable determination of the facts in light of" }, { "docid": "2257983", "title": "", "text": "of the [petitioner’s] case,” or “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Our task is not to determine whether the state court reached the correct outcome, but rather to determine whether the court’s application of clearly established federal law is objectively unreasonable — “a substantially higher threshold.” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). AEDPA also restricts the body of law a habeas court may consider. The Supreme Court in Williams explained that “clearly established Federal law” in § 2254(d) “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). That body of precedent includes “not only bright-line rules but also the legal principles and standards flowing from precedent.” Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir.2002). Thus, “we may find the application of a principle of federal law unreasonable despite the involvement of a set of facts different from those of the case in which the principle was announced.” Spisak v. Hudson, 512 F.3d 852, 854 (6th Cir.2008) (internal quotation marks and brackets omitted); see also Panetti v. Quarterman, — U.S. -, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007). We may look to lower courts of appeals’ decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). III. A. The Supreme Court has “adopted the general rule that a constitutional error does not automatically require reversal of a conviction ... and has recognized that most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S." }, { "docid": "14989072", "title": "", "text": "the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA’s “highly deferential standard for reviewing state court judgments,” a federal court may not grant habeas relief on claims previously adjudicated on the merits by a state court unless the state court adjudication resulted in a decision that was “(1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1255 (11th Cir.2009) (quotation marks, alterations, and citation omitted); 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Court’s].” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). If the state court decision is not contrary to clearly established federal law, the reviewing court must then determine whether the state court decision was an “unreasonable application” of clearly established federal law. Id. at 413, 120 S.Ct. at 1523. A state-court decision involves an unreasonable application of federal law where “the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.” Id. It is not sufficient that the state court’s application was incorrect; the misapplication must also be objectively unreasonable. See id. at 410-11, 120 S.Ct. at 1522. A state-court decision also involves an unreasonable application of federal law where the state court “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. at 1520. Even if the state court’s decision was neither contrary to nor an unreasonable" }, { "docid": "19336725", "title": "", "text": "v. Pinholster, — U.S.-, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). When a state court has adjudicated a claim on the merits, we may grant relief only if the adjudication of that claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). To determine the relevant clearly established federal law, we look to the holdings, but not the dicta, of the Supreme Court at the time the state court adjudicated the claim on the merits. Terry Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In considering whether the state court unreasonably applied clearly established federal law, we are limited to the record before the state court that adjudicated the claim on the merits. Pinholster, 131 S.Ct. at 1398. An unreasonable application of federal law results where the “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495; see also Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (holding that AEDPA does not require habeas courts to await “some nearly identical factual pattern” before applying a clearly established rule, nor does it prohibit “finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced”) (internal quotation marks and citations omitted). We cannot grant relief unless the state court came to a decision that was objectively unreasonable. Williams, 529 U.S. at 410, 120" }, { "docid": "16472995", "title": "", "text": "or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). A state court’s decision is “contrary to ... clearly established federal law” if “the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts.” Lundgren v. Mitchell, 440 F.3d 754, 762-63 (6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (internal quotations and alterations omitted). A state court decision is “an unreasonable application of clearly established federal law” if “the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the [petitioner’s] case.” Id. at 763. Clearly established federal law is determined by the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision. Id. The Supreme Court has stressed that AEDPA’s standard is “difficult to meet” and “demands that [state court] decisions be given the benefit of the doubt.” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotations and citations omitted). A state court’s factual determinations are entitled to a “presumption of correctness,” only rebuttable by “clear and convincing evidence” that the state court based its determination on an “unreasonable determination of the facts.” See Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). In reviewing whether a state court decision was an unreasonable application of federal law, we must remain mindful that “an unreasonable application of federal law is different from an incorrect [one],” Williams, 529 U.S. at 410, 120 S.Ct. 1495, and decline to award habeas relief where fairminded jurists could disagree on the correctness of the state" }, { "docid": "21333359", "title": "", "text": "S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). An “unreasonable application” under § 2254(d)(1) occurs when a state court decision (1) “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or (2) “either unreasonably extends a legal principle from [Supreme Court] precedent to a néw context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. at 1520. The “ ‘unreasonable application’ inquiry ... ask[s] whether the state court’s application of clearly established federal law was objectively unreasonable,” id. at 409, 120 S.Ct. at 1521, which “requires the state court decision to be more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003); see also Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938 (2004))). However, AEDPA does not “prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced. The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner.” Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007) (citation and quotation omitted). Further, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner’s claim on the merits.” Greene v. Fisher, 565 U.S.-,-, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011). Section 2254(d)(1) requires federal courts to “focus[ ] on what a state court knew and did” and to evaluate the reasonableness of the state court’s decision “against [the Supreme] Court’s precedents as of the time the" }, { "docid": "16134551", "title": "", "text": "on a question of lav/ or ‘decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.’ ” Biros v. Bagley, 422 F.3d 379, 386 (6th Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “A state court unreasonably applies Supreme Court precedent ‘if the state court identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular prisoner’s case.’ ” Barnes v. Elo, 339 F.3d 496, 501 (6th Cir.2003) (quoting Williams, 529 U.S. at 407, 120 S.Ct. 1495). “In order for a writ to issue, we must determine both that the state court incorrectly applied the relevant Supreme Court precedent and that this misapplication was objectively unreasonable.” Tolliver, 594 F.3d at 916. We emphasize that AEDPA sets forth a heavy burden for a petitioner to overcome. “The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). A state court determination is not unreasonable “simply because [a federal court] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Rather, the state court’s application of clearly established Supreme Court precedent must be “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). When reviewing ineffective-assistaneeof-counsel claims, we engage in a two-part inquiry. First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose results are reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052," }, { "docid": "1846858", "title": "", "text": "to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quotations omitted). “In other words, a federal court may grant relief when a state court has misapplied a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Id. However, “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was., incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Further, “because the Strickland standard [the standard applicable to a claim for ineffective assistance of counsel] is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). Under § 2254(d)(2), “a federal habeas court must find the state-court conclusion ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ § 2254(e)(1).” Id. at 338-39, 126 S.Ct. 969. III. Discussion A. Whether the district court failed to apply AKDPA’s standard of review and improperly disregarded the state court’s factual findings. The State argues that the district court did not follow the proper standard of review when it granted Richards an evidentiary hearing and “dismissed the trial court’s findings as meaningless,” and that under this Court’s precedent, Richards “was never entitled to a hearing.” The State maintains that the state habeas court’s findings, which were adopted by the Court of Criminal Appeals, are entitled to a presumption of correctness even though it did not conduct a live evidentiary hearing, pointing to cases holding that a full and fair hearing need not involve live testimony, particularly where, as here, the trial court was" }, { "docid": "14967132", "title": "", "text": "mixed question of law and fact. Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009). If the district court’s findings of fact are not clearly erroneous, we will independently apply the law to the facts as found by the district court. Id. Woodfox’s § 2254 petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA requires that federal courts defer to a state court’s adjudication of a claim if the claim has been adjudicated on the merits in the state court proceedings unless the state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court or if it involves a set of facts that are materially indistinguishable from a Supreme Court decision but reaches a result different from that Court’s precedent. Woodward v. Epps, 580 F.3d 318, 325 (5th Cir.2009). “A state court unreasonably applies clearly established federal law as determined by the Supreme Court if it identifies the correct governing principle established by the Supreme Court, but unreasonably applies that principle to the facts of the case.” Rogers v. Quarterman, 555 F.3d 483, 488-89 (5th Cir.2009). An unreasonable application of federal law is different from an incorrect or erroneous application of the law. Id. (citing Williams v. Taylor, 529 U.S. 362, 409-10, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Furthermore, we review for objective reasonableness the state court’s ultimate legal decision, not necessarily the state court’s opinion and legal reasoning for its ultimate decision. Neal v. Puckett," }, { "docid": "22003954", "title": "", "text": "to come out now with a federal standard when that was not the law heretofore in our Circuit. Because until now there has been no federal contemporaneous objection rule in our Circuit (in fact, our practice to date has been not to impose such a rule) and Abu-Jamal’s claim is not procedurally barred under state law, I turn to the merits of his Batson claim. II. Prima Facie Case When evaluating Abu-Jamal’s Batson claim on the merits, both the Pennsylvania Courts on appeal and post-conviction relief review, and the District Court on habeas review, erroneously denied the claim based on what I believe is an incorrect analysis of the legal standards governing when a prima facie case is made. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), which governs our review of habeas cases, we must review the Pennsylvania Supreme Court’s ruling on Abu-Jamal’s Batson claim to determine whether it was “contrary to” or an “unreasonable application of’ clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1); see also Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). A state court decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A ruling fails under the “unreasonable application” prong where the court identifies the correct governing rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court’s precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply. Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir.2003) (quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir.2002)). The state court’s application must" }, { "docid": "2214483", "title": "", "text": "a state court is not an “unreasonable application” of federal law unless the state court “identifies the correct governing legal principle as articulated by the United States Supreme Court, but unreasonably applies that principle to the facts of the petitioner’s case, unreasonably extends the principle to a new context where it should not apply, or unreasonably refuses to extend it to a new context where it should apply.” Id. (quoting Kimbrough, 565 F.3d at 799). “The question under [the Act] is not whether a federal court believes the state court’s determination was correct but whether that determination was unreasonable — a substantially higher threshold.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)). The Supreme Court has held that “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000)). “To obtain habeas relief ‘a state prisoner must show that the state court’s ruling on the claim being presented in the federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1286 (11th Cir.2012) (quoting Richter, 131 S.Ct. at 786-87). When evaluating a state prisoner’s petition, “a habe-as court must determine what arguments or theories supported or, [if none were stated], could have supported! ] the state court’s decision; and then it must ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 1286-87 (quoting Richter, 131 S.Ct. at 786). The Supreme Court has also been clear that “[e]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Richter, 131 S.Ct. at 786 (quoting Yarborough" }, { "docid": "4742605", "title": "", "text": "(6th Cir.2000). And because petitioner filed his habeas petition in 2004, the provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) apply. Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999) (AEDPA applies to petitions filed after April 24,1996). AEDPA prohibits this court from granting a state prisoner’s habeas petition unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d) (1) - (2). A state court decision is “contrary to clearly established Federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a different result.” Slaughter, 450 F.3d at 232. A state court decision unreasonably applies federal law “if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts.” Id. (citing Williams v. Taylor, 529 U.S. 362, 407-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A federal habeas court may not issue a writ under the unreasonable-application clause “simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). The question under AEDPA is not “whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Owens v. Guida, 549 F.3d 399, 404 (6th Cir.2008) (quoting Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1938, 167 L.Ed.2d 836 (2007)). Under AEDPA, the initial inquiry is whether petitioner seeks to apply a rule of law that was clearly established at the time of" }, { "docid": "2214482", "title": "", "text": "the merits in State court proceedings,’ 28 U.S.C. § 2254(d), unless the state court’s decision ‘was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ § 2254(d)(1).” Johnson v. Upton, 615 F.3d 1318, 1329 (11th Cir.2010) (quoting Berghuis v. Thompkins, - U.S. -, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010)). “The Supreme Court has described this standard as ‘a highly deferential’ one that ‘demands that state-court decisions be given the benefit of the doubt.’ ” Id. (quoting Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)). The decision of a state court is not “contrary to” federal law unless it “contradicts the United States Supreme Court on a settled question of law or holds differently than did that Court on a set of materially indistinguishable facts.” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1355 (11th Cir.2009) (quoting Kimbrough v. Sec’y, Dep’t of Corr., Fla., 565 F.3d 796, 799 (11th Cir.2009)). The decision of a state court is not an “unreasonable application” of federal law unless the state court “identifies the correct governing legal principle as articulated by the United States Supreme Court, but unreasonably applies that principle to the facts of the petitioner’s case, unreasonably extends the principle to a new context where it should not apply, or unreasonably refuses to extend it to a new context where it should apply.” Id. (quoting Kimbrough, 565 F.3d at 799). “The question under [the Act] is not whether a federal court believes the state court’s determination was correct but whether that determination was unreasonable — a substantially higher threshold.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)). The Supreme Court has held that “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000)). “To obtain habeas relief" }, { "docid": "23576376", "title": "", "text": "habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or in correctly.” Rather, that application must be “objectively unreasonable.” This distinction creates “a substantially higher threshold” for obtaining relief than de novo review. AEDPA thus imposes a “highly deferential standard for evaluating state-court rulings,” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, ■ — • U.S. -, 130 S.Ct. 1855, 1862, — L.Ed.2d-(2010) (citations omitted). It has repeatedly emphasized that in implementing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a federal court may disturb a state-court ruling only when the law being applied is “clearly established” and the application of that “clearly established” law is unreasonable. “[The] Court has held on numerous occasions that it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.” Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (quotations omitted); see also Wright v. Van Patten, 552 U.S. 120, 126, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (per curiam) (“Because our cases give no clear answer to the question presented, ... it cannot be said that the state court unreasonably applied clearly established Federal law.”) (quotations and alterations omitted); Schriro v. Landrigan, 550 U.S. 465, 478, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (Supreme Court had never addressed “a situation in which a client interferes with counsel’s efforts to present mitigating evidence .... ”); Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (“This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.”): Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (“Even if we agreed with the Ninth Circuit majority ... that there was jury coercion here, it is at least reasonable to conclude" } ]

[ { "docid": "23320052", "title": "", "text": "TJOFLAT, Circuit Judge: On July 15 and December 14, 1981, the district court ordered officials of the Alabama Department of Corrections to release from custody several hundred convicted state prisoners as a means of reducing unconstitutional overcrowding in the Alabama prison system. In these consolidated cases, those officials, the Attorney General of Alabama, and the Governor of Alabama, as receiver of the Alabama prison system, challenge the propriety of the district court’s orders. Because the appellants have fully complied with the July 15 order, we dismiss the appeal of that order as moot. As for the December 14 order, we conclude that the record does not support its entry. We therefore vacate that order and remand this case to the district court for further proceedings. I. We recite only so much of the eleven year history of this litigation as is necessary to our decision. Beginning in 1971, the plaintiffs, all of whom are Alabama prison inmates, brought three separate lawsuits to redress alleged constitutional violations in the Alabama prisons. See Newman v. Alabama, 349 F.Supp. 278 (M.D.Ala.1972); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala. 1976); James v. Wallace, 406 F.Supp. 318 (M.D.Ala.1976). On more than one occasion the district court held that the conditions in the Alabama prison system, including overcrowding, violated the rights of inmates under the eighth and fourteenth amendments and ordered injunctive relief. The court’s actions in these cases were affirmed, with modifications, on consolidated appeal. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). In 1979, in an effort to expedite compliance with its orders, the district court appointed Alabama Governor Fob James receiver of the Alabama prison system, charged with bringing the system into conformity with the court’s decrees. Newman v. Alabama, 466 F.Supp. 628 (M.D.Ala.1979). On October 9, 1980, the district court approved and signed a consent decree in which the defendants and the receiver (collectively, “the State”) agreed to comply fully with all prior remedial orders of the court within specific deadlines. In the portion of the consent decree relevant" } ]

[ { "docid": "7390750", "title": "", "text": "with the administration of state prisons. See Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). However, increasing pressure for prison reform has resulted in broad based judicial intervention in challenges to the constitutionality of entire prison systems. See, e.g., Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984); Dawson v. Kendrick, 527 F.Supp. 1252 (S.W.Va.1981); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, cert, denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). Federal courts no longer limit the prohibition against cruel and unusual punishment to specific acts directed at specific individuals; rather, it is applicable to the general conditions of confinement prevailing in state prisons. E.g., Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert, denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974); Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), affd, 616 F.2d 598 (1 Cir.), cert, denied, 449 U.S. 839,101 S.Ct. 115, 66 L.Ed.2d 45 (1980). In cases challenging overall prison conditions and practices, courts often apply a totality of conditions analysis. See Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1295 (W.D.Penn.1983); Dawson v. Kendrick, 527 F.Supp. at 1285. Properly applied, this approach requires examination of each element of the challenged prison conditions, recognizing the impact of its interdependent existence. Id. This analysis was employed by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in affirming a remedial order of the lower court: The court was entitled to consider the severity of ... [past constitutional] violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates’ diet, the continued overcrowding, the rampant violence, the vandalized cells, and the “lack of professionalism and good judgment on the part of the maximum security personnel.” The" }, { "docid": "7390767", "title": "", "text": "1047-48; Hendrix v. Faulkner, 525 F.Supp. 435, 525 (N.D.Ind.1981), affd in part, vacated in part sub nom. Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert, denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). IV. CONCLUSIONS The evidence presented in this action convinces the Court that individuals sentenced to death have unique psychological and emotional problems. Dr. Halleck testified not only that death row inmates generally experience serious psychological problems because of their sentence of death but that these problems are exacerbated if adequate counseling is not present, if inmates must remain idle for long periods of time, if heating and lighting are inadequate, and if the inmates are not properly classified so as to plan for their psychological needs properly. Transcript, at 33-42, 46. Mr. Gordon Chris Kamka, former Superintendant of the Maryland Reception Diagnostic and Classification Center, Warden of the Baltimore Jail, and Secretary of the Maryland Department of Public Safety and Correctional Services, testified that when inmates are subjected to long periods of isolation without access to religious services or programs to reduce the idleness and to eating in their cells next to their toilets, it is likely that they would lose hope, with the implication that, as Mr. Harries, they may choose not to pursue their legal rights. Transcript, at 290. Virtually all the witnesses testified that they feared that because of the anxieties and frustrations unique to death sentenced inmates, many of these individuals would be prone to outbreaks of violence. As a result, the Court concludes that those sentenced to death in Unit VI face unique psychological crises that inmates in the general population do not face. Consequently, the factors that go to a determination of whether the totality of conditions on death row constitutes cruel and unusual punishment should receive significantly different weights than the factors that are examined in a nondeath row conditions ease. Upon consideration of the changes that have occurred since 1982, it is the judgment of the Court that the totality of conditions in Unit VI violates the Eighth Amendment’s prohibition against cruel and unusual punishment." }, { "docid": "15135886", "title": "", "text": "made findings concerning inmates' access to the courts and held that the access provided was constitutionally deficient. Because those findings have not been shown to have had a direct impact on the issue presented here, we will not discuss them. . Defendants were ordered to end the practice of double-celling by March 1, 1'990. The district court later enlarged the time for compliance until June 30, 1990. . Defendants contest the district court’s finding that the screening system was of \"questionable effectiveness.\" We note that the district court did not find that the screening process was itself unconstitutional, but merely looked to the inadequacy of the screening process as one relevant factor in the determination of the constitutionality of double-celling. 719 F.Supp. at 1267-68, 1273. Furthermore, although, as defendants assert, there was some testimony before the district court that the screening system has operated successfully, see App. at 586A-86B (testimony of Allan Pass, Psychological Services Supervisor of SCIP), there was sufficient testimony supporting the district court’s finding that the system was inadequate. See, e.g., App. at 372-75, 400-04 (testimony of Eugene Miller, plaintiffs’ expert witness), 1331-43 (testimony of James Jones, inmate). . In Cody v. Hillard, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988), the court stated that double-celling violates the Eighth Amendment only where it leads to deprivations of essential needs or increased violence or created other intolerable conditions. However, in overturning the panel opinion which had found the double-celling unconstitutional, the en banc court stressed that prison administrators “have made sincere efforts to maintain a healthful environment,” and “[significantly, many of the District Court’s factual findings suggest that the conditions at [South Dakota State Penitentiary], regardless of the impact of double-celling, fall well within constitutional standards.\" Id. at 915. Thus, while the court appears to adopt a rather strict causal requirement, that requirement is not necessary to its outcome, for, according to the facts as it presents them, the totality of the circumstances did not fall below constitutional standards. . The Court’s recent reversal of a district" }, { "docid": "18413203", "title": "", "text": "violates the Constitution, the trial court’s remedies are not limited to the redress of specific constitutional rights’ ”. Smith v. Sullivan, 611 F.2d 1039, 1045 n. 9 (5th Cir. 1980 — Frank M. Johnson, Circuit Judge). The “totality of conditions” approach to adjudication of prison cases has occasionally been questioned or rejected (Wright v. Rushen, supra, 1132-3) but seems currently to be accepted by the Supreme Court. In Rhodes v. Chapman, — U.S. —, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) the Supreme Court majority referred to Eighth Amendment violations arising from a “combination” of conditions (l.c. 2399), and the concurring justices referred specifically to the “totality of conditions” test (l.c. 2410). The judges of this district have relied on the “totality” approach, and it is generally my practice to accept local rulings which are not plainly foreclosed by subsequent appellate decisions. Ahrens v. Thomas, 434 F.Supp. 873, 897 (W.D.Mo.1977), affirmed in part, mod. in part, 570 F.2d 286 (8th Cir. 1978); Burks v. Walsh, 461 F.Supp. 454, 481 (W.D.Mo.1978). Moreover, the Court of Appeals for the Eighth Circuit seems now to have adopted the “totality” test. Villanueva v. George, 659 F.2d 851 (Sept. 16, 1981). Pursuant to this approach, the parties will be directed to meet, confer, and attempt to agree upon a remedial plan, which may be approved by the Court as a means of improving confinement conditions to at least a minimally constitutional level. See, e. g., West v. Lamb, 497 F.Supp. 989, 994-95 (D.Nev.1980). The parties are asked to offer their utmost cooperation and concrete proposals in devising feasible alternatives which will provide adequate relief. To provide some guidance as to what must be addressed by such a plan in order to comply with constitutional guidelines, some general areas of violations requiring remedial action will be reviewed. The statements herein should by no means be considered all-inclusive, but should be viewed only as a starting point by which the parties may gauge their efforts to complete a comprehensive plan. There are some conditions, however, which, even standing alone, are patently unconstitutional and will be ordered immediately" }, { "docid": "23598518", "title": "", "text": "double celling at the State Prison at Pontiac, Illinois in Smith v. Fairman, 690 F.2d 122 (1982), cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). Pontiac’s double cells ranged in size from 55 to 65 square feet, giving prisoners there 20 to 35 per cent more space than their Pendleton counterparts. Most of the cells at the Pontiac facility were “neat and clean” and much of the crowding in prisoners’ cells was due to the inmates’ books, records, stereos and electronic equipment. Food at Pontiac was found to be nutritious and wholesome. Violence had dramatically declined and medical care was found adequate. While these institutions passed constitutional muster, the Rhodes court noted that prison conditions could be cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” 452 U.S. at 347, 101 S.Ct. at 2399, or when they result in punishments that “ ‘involve the unnecessary and wanton infliction of pain’ or are grossly disproportionate to the severity of the crime.” Id. at 346, 101 S.Ct. at 2399 (citations omitted). In this circuit, we determine whether there have been “serious deprivations of basic human needs,” id. at 347,101 S.Ct. at 2399, by examining the “totality of conditions of confinement.” Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981). In this light, the picture painted of Pendleton is very different from that seen in Smith or Rhodes, from the lack of space and furnishings, to the unwholesome food, medical neglect and continuous threats to prisoners’ safety. We agree that such conditions constitute cruel and unusual punishment. See Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984) (injunction upheld against double celling where it “engender[s] violence, tension and psychological problems”); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (overcrowding can violate eighth amendment). On appeal, defendants contend that even if the conditions were cruel and unusual, the district court’s remedy was too broad. They assert that if the population is reduced, there should be no need to ban double celling. At" }, { "docid": "7390764", "title": "", "text": "court found “no evidentiary basis that he is in imminent danger of voluntarily surrendering his right of access to the Courts.” Id. at 1062. His treating psychiatrist cor roborated this finding, stating that although Smith suffered from anxiety, he was not suffering from a major disorder and his desire to reverse his conviction had not diminished. Id. at 1062-63. The conditions of the death row in Coughlin and the conditions in the case at bar are vastly different. Smith’s cell was sixty feet square. Many cells in Unit VI are barely half that size. The adequacy of the lighting and ventilation was not in dispute. Testimony heard in the case at bar revealed serious inadequacies in ventilation, heating, cooling, and lighting. Smith had access to an exercise yard seven hours per day. Inmates confined in Unit VI are permitted one hour per day in a completely caged-in yard. In short, vast modifications of the policies and practices at Unit VI would have to occur before it would ascend to resemble the conditions of which inmate Smith complained. As an aside, the Court would note that the lack of an evidentiary basis for Smith’s claimed psychological debilitation was founded upon testimony of Smith’s psychiatrist of two years. The attention to a death row inmate’s psychological needs is conspiciously absent in the case at bar. The tradition of deference to the decisions of prison administrators has survived the development of the totality of conditions approach. See Cody v. Hillard, 599 F.Supp. at 1046. Courts often invoke broad equitable powers in remedying constitutional deprivations, e.g., Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir. 1982), cert, denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983); Battle v. Anderson, 457 F.Supp. 719, 734-35 (E.D.Okla. 1978), and have been reluctant to impose comprehensive and intrusive remedies. See Lock v. Jenkins, 464 F.Supp. 541, 548-49 (N.D.Ind.1978), affd in part, rev’d in part, 641 F.2d 488 (7th Cir.1981) (federal courts should defer to prison officials as to the means by which unconstitutional conditions are corrected). Because unconstitutional prison conditions infect the entire system of corrections," }, { "docid": "7390765", "title": "", "text": "Smith complained. As an aside, the Court would note that the lack of an evidentiary basis for Smith’s claimed psychological debilitation was founded upon testimony of Smith’s psychiatrist of two years. The attention to a death row inmate’s psychological needs is conspiciously absent in the case at bar. The tradition of deference to the decisions of prison administrators has survived the development of the totality of conditions approach. See Cody v. Hillard, 599 F.Supp. at 1046. Courts often invoke broad equitable powers in remedying constitutional deprivations, e.g., Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir. 1982), cert, denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983); Battle v. Anderson, 457 F.Supp. 719, 734-35 (E.D.Okla. 1978), and have been reluctant to impose comprehensive and intrusive remedies. See Lock v. Jenkins, 464 F.Supp. 541, 548-49 (N.D.Ind.1978), affd in part, rev’d in part, 641 F.2d 488 (7th Cir.1981) (federal courts should defer to prison officials as to the means by which unconstitutional conditions are corrected). Because unconstitutional prison conditions infect the entire system of corrections, a comprehensive remedial scheme is the only method to insure continued compliance. Comment, Refining the Totality Approach, at 247. Although “[e]aeh factor separately ... may not rise to constitutional dimensions [,] ... the effect of the totality of these circumstances is the infliction of punishment on inmates violative of the Eighth Amendment____” Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). See also Alberti v. Heard, 600 F.Supp. 443, 457-58 (S.D.Tex.1984). A constitutional right is not being established for each aspect of the remedy. See Miller v. Carson, 563 F.2d 741, 751 (5th Cir.1977) (when the totality of conditions violates the Constitution, remedies are not limited to the redress of specific constitutional rights). Rather, “[e]ven if no single condition of confinement would be unconstitutional in itself, ‘exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment.’ ” Rhodes v. Chapman, 452 U.S. at 363, 101 S.Ct. at 2407 (Brennan, J., concurring) (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 322-23 (D.N.H.1977)). See also Cody v. Hillard, 599 F.Supp. at" }, { "docid": "15135866", "title": "", "text": "necessarily violate the Eighth Amendment. The amendment is violated only where an inmate is deprived of “the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; see Inmates of Occoquan, 844 F.2d at 835-41; Cody v. Hillard, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). The denial of medical care, prolonged isolation in dehumanizing conditions, exposure to pervasive risk of physical assault, severe overcrowding, and unsanitary conditions have all been found to be cruel and unusual under contemporary standards of decency. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical care); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (prolonged isolation in unsanitary, overcrowded cell); Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985) (security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) (overcrowding, sanitation), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Although prisoners are, undeniably, sent to prison as punishment, the prison environment itself may not be so brutal or unhealthy as to be in itself a punishment. Battle v. Anderson, 564 F.2d 388, 395 (10th Cir.1977). In challenging the district court’s holding, defendants contend that double-celling is not per se unconstitutional. They rely on the Supreme Court’s holding in Rhodes v. Chapman, 452 U.S. at 348-49, 101 S.Ct. at 2400-01, that double-celling inmates, under the circumstances in the prison at issue there, did not violate the Eighth Amendment. See also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (double-celling pre-trial detainees for short periods does not constitute punishment under due process clause); French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985) (practice of double-celling not per se unconstitutional); but see Battle, 564 F.2d at 395 (sixty square feet per inmate is constitutional minimum); Ramos, 639 F.2d at 568 (reaffirming Battle). However, in determining whether conditions of confinement violate the Eighth Amendment we must look at the totality of the conditions within the institution. The Supreme Court made this precept clear" }, { "docid": "7390751", "title": "", "text": "Estelle, 503 F.Supp. 1265 (S.D.Tex.1980); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), affd, 616 F.2d 598 (1 Cir.), cert, denied, 449 U.S. 839,101 S.Ct. 115, 66 L.Ed.2d 45 (1980). In cases challenging overall prison conditions and practices, courts often apply a totality of conditions analysis. See Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1295 (W.D.Penn.1983); Dawson v. Kendrick, 527 F.Supp. at 1285. Properly applied, this approach requires examination of each element of the challenged prison conditions, recognizing the impact of its interdependent existence. Id. This analysis was employed by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in affirming a remedial order of the lower court: The court was entitled to consider the severity of ... [past constitutional] violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates’ diet, the continued overcrowding, the rampant violence, the vandalized cells, and the “lack of professionalism and good judgment on the part of the maximum security personnel.” The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the Court’s conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment. 437 U.S. at 687, 98 S.Ct. at 2571 (citation omitted). Totality of conditions analysis is in contrast to what has been described as “discrete adjudication.” See Comment, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv.L.Rev. 626, 628 (1981). In discrete adjudication, the explicit target of the lawsuit is a particular incident or practice. Within the prison context, examples of discrete adjudication can be found in recent Supreme Court cases reviewing constitutional challenges to particular aspects of prisons. At issue may be the validity of a parole procedure, or of rales restricting specific inmate activity such as. a ban on soliciting for a prisoners’ union. The Court’s analytical approach in these cases exemplifies the essential character of discrete adjudication. Id. (footnotes omitted). Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)," }, { "docid": "23598519", "title": "", "text": "at 2399 (citations omitted). In this circuit, we determine whether there have been “serious deprivations of basic human needs,” id. at 347,101 S.Ct. at 2399, by examining the “totality of conditions of confinement.” Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981). In this light, the picture painted of Pendleton is very different from that seen in Smith or Rhodes, from the lack of space and furnishings, to the unwholesome food, medical neglect and continuous threats to prisoners’ safety. We agree that such conditions constitute cruel and unusual punishment. See Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984) (injunction upheld against double celling where it “engender[s] violence, tension and psychological problems”); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (overcrowding can violate eighth amendment). On appeal, defendants contend that even if the conditions were cruel and unusual, the district court’s remedy was too broad. They assert that if the population is reduced, there should be no need to ban double celling. At this time we disagree. The district court has broad powers to forge an adequate remedy to permanently correct any constitutional violation. As the Supreme Court has stated, “once a constitutional violation is demonstrated, the scope of the district court’s equitable powers to remedy past wrongs is broad, for breadth is inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). Here, where there was narrowly cramped double celling as a feature of severely overcrowded, unsafe and unsanitary conditions, we cannot conclude that the district court exceeded its broad remedial power. Under present conditions, a complete ban on double celling is fully justified. However, since double celling is not per se unconstitutional, if the Indiana prison system eliminates the severe overcrowding at Pendleton and the pernicious evils that accompany it, the state can at a later date seek some modification of the ban on double celling. If adequate reasons were shown and overall conditions warrant, such a request would, of course, be entitled to" }, { "docid": "7390771", "title": "", "text": "method for prison administrators to insure the constitutional rights of inmates. The Constitution does not expressly require states to develop prisoner classification plans for the incarceration of convicted criminals. In the past, we have approved district court orders that require state prisons to develop classification systems, but those orders were not predicated on an Eighth Amendment right to classification. They were used as remedies employed to eradicate abuses that were themselves unconstitutional. For example, when prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners, and the level of violence becomes so high as to constitute cruel and unusual punishment under the Eighth Amendment, federal courts have broad authority to eradicate such conditions and may order the development of a classification system as part of the remedy. Jones v. Diamond, 594 F.2d at 1015 (emphasis in original). In deference to the expertise and discretion of the prison administration, this Court does not intend to direct defendants to implement a system of classification of inmates confined in Unit VI. However, in that the totality of conditions existing within Unit VI is unconstitutional, substantial remedial measures are in order. Classification would seem to be a logical, economical, and effective means of achieving this constitutionally mandated end. The average death row inmate spends six to ten years pursuing appeals. Death sentenced inmates are aware that their institutional record while on death row could influence their chances for clemency; but, perhaps more significantly, the presence of a classification system could have the effect of improving the mental and physical health of the inmates. Specifically, inmates could be classified to identify death row inmates with serious emotional problems. Classification could reveal those inmates, who could be allowed to participate in many out of cell activities such as group religious services, educational programs, work programs, group dining, indoor recreation, or fire drills. Classification could identify those inmates who could serve more safely as rockmen. Proper classification could also permit many inmates to be out of their cells long enough to allow the fumes from insecticides or paint to dissipate" }, { "docid": "5261814", "title": "", "text": "federal courts should proceed cautiously and incrementally in ordering remediation so as not to assume the role of prison administrators. See, e.g., United States v. Michigan, 940 F.2d 143, 167-68 (6th Cir.1991) (“[I]t was incumbent upon the district court in the action sub judice to impose the least intrusive remedies available.... The trial court, having acknowledged the teachings of the Supreme Court addressing state penal institutional administration, was remiss in not fashioning its disposition in accordance with those directional dictates.”); Cody v. Hillard, 799 F.2d 447, 449 (8th Cir.1986) (district court found numerous constitutional violations yet initially ordered only that prison officials “prepare plans to cure the constitutional violations” for submission to the court); Ruiz v. Estelle, 679 F.2d 1115, 1127 (5th Cir.1982) (after 159 days of trial, over the course of which 349 witnesses testified, district court did not immediately enter a remedial order, but provided parties an opportunity to formulate consent decree); Fisher v. Koehler, 692 F.Supp. 1519, 1565, 1567 (S.D.N.Y.1988) (after finding that “both inmate-inmate violence and staff-inmate violence at [the prison] have reached proportions which violate the Eighth Amendment,” court decides “against the entry of an injunction adopting the specific proposals suggested by the plaintiffs at this time, before defendants have been given an opportunity to submit a reasonable plan for the court’s consideration”). Cf. Strickler v. Waters, 989 F.2d 1375, 1382 (4th Cir.), cert. denied - U.S. -, 114 S.Ct. 393, 126 L.Ed.2d 341 (1994). Indeed, intrusive and far-reaching federal judicial intervention in the details of prison management is justifiable only where state officials have been afforded the opportunity to correct constitutional infirmities and have abdicated their responsibility to do so. For example, in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court upheld the district court’s intrusive order for the very reason that it did not come until it was evident that prison officials would not comply with the court’s earlier, generalized orders to remedy the unconstitutional conditions: In fashioning a remedy, the District Court had ample authority to go beyond earlier orders and to address each" }, { "docid": "7390763", "title": "", "text": "with fellow inmates, the right to attend congregate religious services, and the right to keep legal papers in his cell. He also testified that as a result of the totality of the conditions in the condemned persons unit, he had suffered psychological damage. Id. This physical and mental deterioration, he asserted, would result in his loss of will to fight his conviction through appeal and thereby violate his Sixth Amendment right of access to the courts. Smith v. Coughlin, 577 F.Supp. 1055, 1059 (S.D.N.Y.1983), affd, 748 F.2d 783 (2d Cir.1984). The district court, citing Rhodes v. Chapman, found that the totality of the conditions of Smith’s confinement did not constitute cruel and unusual punishment. 577 F.Supp. at 1060-61. Although the court found that the ban on visits by paralegal personnel violated his Sixth Amendment right of access to the courts, no other constitutional violations were found. Id. at 1063. Regarding Smith’s claim that the adverse conditions of incarceration prior to execution would weaken his will and force him to surrender his right of appeal, the court found “no evidentiary basis that he is in imminent danger of voluntarily surrendering his right of access to the Courts.” Id. at 1062. His treating psychiatrist cor roborated this finding, stating that although Smith suffered from anxiety, he was not suffering from a major disorder and his desire to reverse his conviction had not diminished. Id. at 1062-63. The conditions of the death row in Coughlin and the conditions in the case at bar are vastly different. Smith’s cell was sixty feet square. Many cells in Unit VI are barely half that size. The adequacy of the lighting and ventilation was not in dispute. Testimony heard in the case at bar revealed serious inadequacies in ventilation, heating, cooling, and lighting. Smith had access to an exercise yard seven hours per day. Inmates confined in Unit VI are permitted one hour per day in a completely caged-in yard. In short, vast modifications of the policies and practices at Unit VI would have to occur before it would ascend to resemble the conditions of which inmate" }, { "docid": "7390773", "title": "", "text": "or to permit the installation of new toilets. Classification of inmates on death row need not involve the same procedures as with the general population. The inmates in Unit VI who receive a certain classification need not receive the freedoms given to inmates similarly classified in the general pbpulation. The Court found the testimony of witnesses Dutton, Rose, Pellegrin, and Henderson convincing that there were valid security concerns supporting the policy that those confined to Unit VI should be segregated from the remainder of the prison population. See Bell v. Wolfish, 441 U.S. at 546-47, 99 S.Ct. at 1877-78. Nothing in this Memorandum should be interpreted as requiring that the inmates sentenced to death in Unit VI should be integrated into the general population. Under questioning by this Court, Warden Dutton acknowledged that with proper structural changes and other accomodations for security concerns, including more staff, the following changes in Unit VI could be accomplished for inmates classified “medium security” within a separate Unit VI classification system: (1) the visitation rooms could be used for weekly meals for four inmates at a time; (2) the day room (“law library”) could be used more often; and (3) a group religious ceremony could be held, perhaps on Monday nights. It is the opinion of this Court that Warden Dutton’s testimony is indicative of the potential curative effect of classifying the death row population. Dutton preferred to refer to such proposed changes as “program needs.” Transcript, at 726-27. The onus of correcting the unconstitutional conditions existing at Unit VI is on the defend ants. Regardless of the approach or its label, each condition contributing to the unconstitutional totality must be addressed. A special master, to be appointed by the Court, will work in conjunction with the defendants to prepare a comprehensive plan to abate the unconstitutional conditions prevailing at Unit VI. This plan will encompass the physical characteristics of the Unit and the cells, the policies and practices of the defendants, and the physical and psychological needs of the inmates, all contributing to the totality of conditions currently existing. The Court reserves the" }, { "docid": "7390770", "title": "", "text": "not permitted access to a dining room or a gymnasium; they may not leave their cells to visit the commissary or law library; and exercise opportunities are minimal. Counseling services, although somewhat improved, are inadequate for so many men facing the death sentence. Of significant concern to the Court is that the inmates have no opportunity for congregate religious services. The Court finds no constitutional problems with the inmates’ rights of access to the courts. In addition, the Penitentiary’s visitation policies are seemingly adequate. These practices will not be elements of the finding of unconstitutionality pursuant to the totality of conditions analysis. It appears to the Court that a classification system incorporating psychological and personality evaluations could serve to alleviate the unconstitutional totality of conditions existing in Unit VI. Although the Fifth Circuit has cautioned that “[federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they, in their broad discretion, may deem appropriate, ...” Newman v. Alabama, 559 F.2d at 287, such a classification system may provide a method for prison administrators to insure the constitutional rights of inmates. The Constitution does not expressly require states to develop prisoner classification plans for the incarceration of convicted criminals. In the past, we have approved district court orders that require state prisons to develop classification systems, but those orders were not predicated on an Eighth Amendment right to classification. They were used as remedies employed to eradicate abuses that were themselves unconstitutional. For example, when prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners, and the level of violence becomes so high as to constitute cruel and unusual punishment under the Eighth Amendment, federal courts have broad authority to eradicate such conditions and may order the development of a classification system as part of the remedy. Jones v. Diamond, 594 F.2d at 1015 (emphasis in original). In deference to the expertise and discretion of the prison administration, this Court does not intend to direct defendants to implement a system of classification of inmates confined in Unit VI." }, { "docid": "18351891", "title": "", "text": "See Grubbs v. Bradley, 552 F.Supp. at 1070-87, 1110-13, 1125-26, 1131 (extensive double-celling in old, poorly-maintained Tennessee prison units, combined with inadequate ventilation, lighting, fire safety provisions, job and educational opportunities, kitchen and food storage facilities, physical and mental health care, and other deficient conditions); French v. Owens, 538 F.Supp. at 924-26, 927 (distinguishing Rhodes; double-celling in 59 year old Indiana prison, combined with inadequate ventilation and heating system, deficient electric wiring, unsanitary kitchen and food areas, inadequate fire protection provisions, inadequate job and vocational opportunities, no running hot water in cell basins, absence of dayrooms, inadequate medical care, and other conditions); Cf. Hendrix v. Faulkner, 525 F.Supp. 435, 463-510, 525-26 (N.D.Ind.1981), aff'd in relevant part sub. nom. Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (although double-celling not practiced, excessive in-cell time in cells ranging in size from 54 to 59.2 square feet in Indiana state prison over 100 years old, combined with otherwise constitutionally adequate conditions of confinement, constituted unconstitutionally overcrowded conditions). But see Smith v. Fairman, 690 F.2d 122 (7th Cir.1982), cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983) (double-celling approximately 56 percent of the general inmate population at an Illinois prison in cells ranging in size from roughly 55 to 65 square feet — combined with totality of other conditions of confinement — did not constitute eighth amendment violation). In Burks v. Walsh, 461 F.Supp. 454 (W.D.Mo.1978), aff'd sub. nom. Burks v. Teasdale, 603 F.2d 59 (8th Cir.1979), a preRhodes decision, the court held inter alia, that double-celling inmates in 65 square foot cells (Housing Unit 3 constructed in 1865), combined with other conditions of confinement at the Missouri State Penitentiary, did not violate the eighth amendment. 461 F.Supp. at 487-88. This court distinguishes the holding in Burks on two grounds. First, although basing its decision on the totality-of-conditions standard, the Burks court limited its analysis only to inmate allegations concerning “over-crowding and unsanitary conditions”, deferring other issues, such as claims of inadequate medical care, for a separate trial." }, { "docid": "2400546", "title": "", "text": "means by which that question may be answered. Instead of giving proper consideration to the rights of individuals, the decision was harnessed to a balance sheet. The results of this process are there for everyone to see. Indeed, if the Colorado Department of Corrections were Dorian Gray, the Canon Correctional Facility would be its portrait. In granting relief for violation of prisoners’ constitutional rights, courts have taken a number of approaches. Some have entered comprehensive orders, detailing their requirements and setting up timetables for compliance. See, e. g., Pugh v. Locke, 406 F.Supp. at 331-32, modified in relevant part and remanded sub nom. Newman v. Alabama, 559 F.2d at 290; Jones v. Witten-berg, 73 F.R.D. 82 (N.D.Ohio 1976). Also see Jones v. Wittenberg, 440 F.Supp. 60 (N.D.Ohio 1977). In Palmigiano v. Garrahy, 443 F.Supp. at 986-89, the district court entered a comprehensive order and mandated that the unconstitutional facility be closed within one year. The court appointed a special master to file monthly reports and gave him extensive authority to oversee and implement compliance, including the authority to recommend staff hiring and transfers. Judge Johnson, faced with repeated delay and recalcitrance in Newman v. Alabama, 466 F.Supp. 628, 635-39 (M.D.Ala.1979), appointed the governor of Alabama as receiver for the prison system and transferred all corrections’ responsibilities and functions directly to the governor’s office. Still other courts have ordered population reductions in overcrowded prison facilities, see, e. g., Battle v. Anderson, 447 F.Supp. at 526, aff’d, 564 F.2d at 398-403, while others have ordered institutions to be closed. See, e. g., Battle v. Anderson, 457 F.Supp. at 738-39; Palmigiano v. Garrahy, 443 F.Supp. at 986; and Gates v. Collier, 407 F.Supp. 1117, 1122-23 (N.D.Miss.1975), aff’d and remanded, 548 F.2d 1241 (5th Cir. 1977). In Hutto v. Finney, 437 U.S. 678, 687-88, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court recently affirmed the broad equitable power of lower federal courts to remedy continuing constitutional violations, especially where defendants have had repeated opportunities to resolve the problems themselves. The court recognized the interdependence of many prison violations and held that the" }, { "docid": "7390749", "title": "", "text": "the inmates confined to Unit VI. These changes included elimination of com missary visits, religious services, group dinners, and visits to the gymnasium. The effect of these changes was clearly to make Unit VI a separate “prison within a prison.” Therefore, the Court will also examine the conditions in Unit VI to the extent that these changes have significantly altered the conditions in Unit VI since the Court’s findings in Grubbs. Finally, as a practical matter, the Court must examine the conditions on death row because of this Court’s finding that the conditions in Unit VI had caused Mr. Harries to waive his legal rights involuntarily and had contributed to his mental illness. Id. at 961. Mr. Harries’ personal claim was not at issue in Grubbs. Thus, the Court’s conclusions of law as to the constitutionality of conditions in Unit VI will be limited to changes in conditions and changes in policies that significantly affect the conditions on death row since the findings of fact in Grubbs. Traditionally, federal courts have been reluctant to interfere with the administration of state prisons. See Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). However, increasing pressure for prison reform has resulted in broad based judicial intervention in challenges to the constitutionality of entire prison systems. See, e.g., Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984); Dawson v. Kendrick, 527 F.Supp. 1252 (S.W.Va.1981); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, cert, denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). Federal courts no longer limit the prohibition against cruel and unusual punishment to specific acts directed at specific individuals; rather, it is applicable to the general conditions of confinement prevailing in state prisons. E.g., Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert, denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974); Ruiz v." }, { "docid": "7390760", "title": "", "text": "Refining the Totality Approach, at 236. General concerns with federalism, however, will not prevent this Court from ameliorating cruel and unusual prison conditions if found to be warranted pursuant to the totality of conditions approach. “Courts certainly have a responsibility to scrutinize claims of cruel and unusual confinement____ When conditions of confinement amount to cruel and unusual punishment, ‘federal courts will discharge their duty to protect constitutional rights.’ ” Rhodes v. Chapman, 452 U.S. at 352, 101 S.Ct. at 2402 (quoting Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974)). As noted above, no precise definition exists that identifies the point at which prison conditions violate the Eighth Amendment. In a totality analysis, a court will examine certain conditions that “do not rise to constitutional dignity but which aggravate the more serious defects and deficiencies.” Holt v. Sarver, 309 F.Supp. 362, 380 (E.D.Ark.1970), affd, 442 F.2d 304 (8th Cir.1971). If the aggregate conditions transgress constitutional standards, the court is then empowered to fashion an appropriate remedy. Although elements of this remedy, if considered alone, may extend beyond constitutional mandates, they may be invoked as part of a comprehensive plan to eradicate the Eighth Amendment violation. See Newman v. Alabama, 559 F.2d 283, 288 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), cert, denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). See also Comment, Refining the Totality Approach, at 240. In Smith v. Coughlin, 748 F.2d 783, 788 (2d Cir.1984), Lemuel Smith, a prisoner in a special unit for condemned persons in New York, challenged the restrictions imposed on him as a result of his confinement. Id. at 784. The prisoner was confined to a sixty square foot cell containing adequate lighting and ventilation. He had access to a radio and television twenty-four hours a day and the personal or legal materials of his choice. He was permitted to exercise daily from 8:30 a.m. until 3:30 p.m. in a yard measuring approximately twenty yards square and could receive visitors daily. Daily contact visits were permitted" }, { "docid": "7390766", "title": "", "text": "a comprehensive remedial scheme is the only method to insure continued compliance. Comment, Refining the Totality Approach, at 247. Although “[e]aeh factor separately ... may not rise to constitutional dimensions [,] ... the effect of the totality of these circumstances is the infliction of punishment on inmates violative of the Eighth Amendment____” Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). See also Alberti v. Heard, 600 F.Supp. 443, 457-58 (S.D.Tex.1984). A constitutional right is not being established for each aspect of the remedy. See Miller v. Carson, 563 F.2d 741, 751 (5th Cir.1977) (when the totality of conditions violates the Constitution, remedies are not limited to the redress of specific constitutional rights). Rather, “[e]ven if no single condition of confinement would be unconstitutional in itself, ‘exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment.’ ” Rhodes v. Chapman, 452 U.S. at 363, 101 S.Ct. at 2407 (Brennan, J., concurring) (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 322-23 (D.N.H.1977)). See also Cody v. Hillard, 599 F.Supp. at 1047-48; Hendrix v. Faulkner, 525 F.Supp. 435, 525 (N.D.Ind.1981), affd in part, vacated in part sub nom. Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert, denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). IV. CONCLUSIONS The evidence presented in this action convinces the Court that individuals sentenced to death have unique psychological and emotional problems. Dr. Halleck testified not only that death row inmates generally experience serious psychological problems because of their sentence of death but that these problems are exacerbated if adequate counseling is not present, if inmates must remain idle for long periods of time, if heating and lighting are inadequate, and if the inmates are not properly classified so as to plan for their psychological needs properly. Transcript, at 33-42, 46. Mr. Gordon Chris Kamka, former Superintendant of the Maryland Reception Diagnostic and Classification Center, Warden of the Baltimore Jail, and Secretary of the Maryland Department of Public Safety and Correctional Services, testified that when inmates are subjected to long periods of isolation without access to religious services" } ]

[ { "docid": "1094018", "title": "", "text": "— U.S. at-, 112 S.Ct. at 2247. If Defendant’s retirement plan prohibited any assignment or alienation, Defendant’s retirement benefits may not have been property of the bankruptcy estate. A copy of the retirement plan was not presented at trial. The Court, therefore, declines to rule on whether Defendant’s retirement benefits became property of the bankruptcy estate. A number of courts have considered whether a former spouse’s pension entitlement was a “debt” when the bankruptcy case was filed. Most courts have found that the former spouse’s interest in the debtor’s pension plan became absolute upon the granting of the divorce and thereafter was the “sole and separate property” of the nondebtor spouse. Resare v. Resare (In re Resare), 142 B.R. 44 (Bankr.D.R.I.1992). In McNierney v. McNierney (In re McNierney ), the debtor and his former wife were divorced four years prior to the debtor first receiving a retirement payment from his employer, IBM. The marital settlement agreement provided, in part: [T]he parties hereto acknowledge that during the entire 23 years and 5 months of their marriage, [the husband] has been employed with IBM, and it is agreed that at such time as [the husband] retires, or otherwise qualified [sic] for retirement benefits, [the former wife] shall be entitled to receive, as her community property interest an amount equal to ½ times 23.5 years. X being the X total number of years’ service [the husband] is credited with by IBM for retirement purposes. 97 B.R. at 650. The bankruptcy court held that the former wife’s entitlement to a portion of the retirement benefit was her separate property and not a nondischargeable debt for alimony or support. The bankruptcy court noted that the debtor was a mere conduit for the payment of retirement benefits from IBM. In Zick v. Zick (In re Zick), the state court had awarded the former wife an interest in the debtor’s pension fund. The Chapter 7 debtor asked the bankruptcy court to determine the dischargeability of the award pursuant to section 523(a)(5). The bankruptcy court stated: The husband argues that the divorce court’s award of a portion of" } ]

[ { "docid": "1926974", "title": "", "text": "672, 674 (Bankr.N.Y.1993); see generally In re Byler, 160 B.R. 178, 180 (Bankr.N.D.Okl.1993); Matter of Newcomb, 151 B.R. 287 (Bankr.M.D.Fla.1993); In re Resare, 142 B.R. 44, 46 (Bankr.D.R.I.1992), affd 154 B.R. 399 (D.R.I.1993); In re Long, 148 B.R. 904 (Bankr.W.D.Mo.1992) (interest of non-employee spouse in non-military pension is the sole property of such spouse); In re Ledvinka, 144 B.R. 188, 192 (Bankr.M.D.Ga.1992) (citing Bush v. Taylor, 912 F.2d 989, 993 (8th Cir.1990)); In re Zick, 123 B.R. 825 (Bankr. E.D.Wis.1990) (where prepetition divorce decree awarded wife portion of pension, that portion did not constitute husband’s property at time of bankruptcy filing and thus could not be excepted from discharge); In re Farrow, 116 B.R. 310 (Bankr.M.D.Ga.1990); In re Benich, 811 F.2d 943, 945 (5th Cir.1987); In re Chandler, 805 F.2d 555 (5th Cir.1986) (monthly army retirement benefits awarded to wife pursuant to divorce decree were sole and separate property of wife and did not become property of the debtor’s estate); accord In re Beattie, 150 B.R. 699, 701 (Bankr.S.D.Ill.1993). Even if the debtor spouse has actual possession of the pension plan or payments from the pension plan, the nondebtor’s interest in the pension plan is still that nondebtor spouse’s separate property and does not become property of the estate. Instead, the debtor spouse holds that property interest of the nondebtor spouse as a constructive trustee for the benefit of the nondebtor spouse. In re Kinder, 133 B.R. 151, 152 (W.D.Miss.C.D.1991) citing Bush v. Taylor, 912 F.2d at 993; In re Dahlin, 94 B.R. 79, 81 (Bankr.E.D.Va.1988), aff'd 911 F.2d 721 (4th Cir.1990) (debtor actually became a trustee for ex-wife at the time divorce decree was entered and ex-wife’s interest in her portion of pension benefits vested); In re Brown, 21 B.R. 377, 379 (Bankr.E.D.Cal.1982). In general, property that a debtor holds as a trustee does not become property of the bankruptcy estate. See 11 U.S.C. § 541(d); Begier v. Internal Revenue Service, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). In the present situation, i.e., where some monthly pension payments have been distributed to the Debtor prepetition, he" }, { "docid": "18793012", "title": "", "text": "debtor. The non-debtor spouse argued that the wage attachment claim was a result of defalcation while acting in a fiduciary capacity and thus non-dischargea-ble under section 523(a)(4). The court found no constructive trust to exist and even if it had, said the court, it would be legally insufficient since section 523(a)(4) does not apply to trusts ex maleficio that may be imposed by an act of wrongdoing. In Tressler, the bankruptcy court was not dealing with the question of legal versus equitable title in marital property. It was merely considering a marital debt which the debtor spouse had, by decree, been obligated to pay. Consider in contrast the case of In re Brown, 21 B.R. 377 (Bankr.E.D.Cal.1982), where the divorce decree provided that the debtor’s navy pension was community property under state law and that the non-debtor spouse had a one-half interest in it. The debtor was by decree directed to pay the non-debtor spouse a portion of each monthly pension payment. The bankruptcy court, disagreeing with the debtor, held that the obligation was not one of property settlement under section 523(a)(5) but was a division of community-held property into separate property. The debtor held legal title to each monthly check, but the non-debtor spouse held an equitable interest in the portion awarded to her. The court held the debtor to be constructive trustee for the non-debtor spouse of her equitable interest. The distinction between these two cases is that the obligation in Tressler was merely a debt not arising from any pre-petition equitable interest in particular property. In Brown, however, the non-debtor spouse was said to have a specific interest in specific property which never became a part of the bankruptcy estate and thus the interest was not susceptible of discharge under section 523. There are very few cases which bear on this distinction, but the distinction does exist and is perhaps best characterized as an emerging departure from strictly categorizing divorce decree awards as either support or property settlements under section 523(a)(5). The Eighth Circuit Court of Appeals recently considered the issue in context of a section 522(f)(1)" }, { "docid": "13374840", "title": "", "text": "spouse’s rights may be no greater than that of a general unsecured creditor. Under New York law, one spouse’s rights in marital property owned by the other are inchoate and do not vest until entry of a judgment of divorce. In re Cole, 202 B.R. 356, 360 (Bankr.S.D.N.Y.1996). The result is that a non-debtor spouse does not have a recognizable property interest in a debtor’s property until entry of the divorce judgment. The debt- or’s property comes into the bankruptcy estate free from the spouse’s inchoate interest, and the spouse has a claim to the debtor’s property to the same extent as does any other unsecured creditor. If the divorce judgment is not entered pre-petition, the trustee’s rights as a hypothetical lien creditor cut off the spouse’s rights to the debtor’s property and the spouse is left with a claim against the estate which is discharged unless it is declared non-dis-chargeable under 11 U.S.C. §§ 523(a)(5) or (15). In the decision of In re Cole, 202 B.R. 356, 360 (Bankr.S.D.N.Y.1996), Chief Judge Stuart M. Bernstein explains that “DQf bankruptcy intervenes before the state court enters the judgment, the trustee’s status as a hypothetical lien creditor cuts off the non-debtor spouse’s inchoate rights in marital property ..., and leaves her with a general unsecured claim.” Cole, 202 B.R. at 360 (citations omitted). On the other hand, where a divorce decree is entered pre-petition which declares an award of equitable distribution and transfers title to the non-debtor spouse, the property does not become property of the debtor spouse’s estate. See In re Greenwald, 134 B.R. 729, 731 (Bankr.S.D.N.Y.1991) (analyzing cases but finding that award entered pre-petition and spouse’s interest did not become property of the estate). This Court declines to follow those cases which hold that a divorce judgment entered post-petition creates a post-petition debt not subject to the discharge. Rather, this Court agrees with the reasoning in Anjum and Cole and those other cases which hold that where a divorce action is commenced pre-petition, but the divorce judgment is not entered until after the petition is filed, a debtor’s ex-spouse holds" }, { "docid": "18800990", "title": "", "text": "to a two party dispute between Purpura and Mai-da. Purpura’s incantations sound in bankruptcy, but fundamentally he continues to dispute the fate of valuable property awarded Maida in the Matrimonial Action. Absent the pre-petition equitable distribution awards, Purpura would have never filed a Chapter 11 petition. He filed not to reorganize, but rather, as indicated, as a litigation tactic to relitigate and at the same time to further thwart Maida’s collection efforts. Moreover, Purpura’s financial posture negates any legitimate reorganization purpose. According to his bankruptcy schedules, he is solvent and, apart from Maida, reports insubstantial debt in relation to his assets held by a handful of creditors. Purpura presented no evidence that those creditors were pressing for payment when he filed. He does not need Chapter 11 protection to conduct his business affairs and pay his creditors. Pur-pura is fully capable of paying every penny of his not more than $76,000 of non-Maida scheduled debt without resort to a Chapter 11 reorganization. Purpura’s assets include entitlement to approximately $120,000 from the Escrow Fund being held by the New York City Department of Finance, and a 50% interest in two unencumbered houses having a combined value of approximately $1.5 million. Plainly, Purpura is employing Chapter 11 as an offensive weapon in this two party fracas, contrary to the principle that our “bankruptcy laws are intended as a shield, not as a sword.” In re Penn Central Trans. Co., 458 F.Supp. 1346, 1356 (E.D.Pa.1978). Where, as here, a debtor’s Chapter 11 effort involves essentially a two party dispute based on state law, and the filing for relief represented a litigation tactic to stall and impede the enforcement of legal rights against the debtor, dismissal for “cause”, i.e., a bad faith filing, is warranted. In re Moog, 159 B.R. 357 (Bankr.S.D.Fla.1993) (facts similar to this case — Chapter 11 case filed by debtor as a litigation tactic to circumvent ex-spouse’s efforts to enforce New York divorce decree was dismissed as bad faith filing); In re HBA East, Inc., 87 B.R. 248 (Bankr.E.D.N.Y.1988); In re Schlangen, 91 B.R. 834 (Bankr.N.D.Ill.1988); In re Van Owen" }, { "docid": "18800994", "title": "", "text": "a bankruptcy petition. Old Stone Bank v. Tycon I Building Ltd. Partnership, 946 F.2d 271, 276 (4th Cir.1991) (“It is well established that a debtor ... cannot use the cover of bankruptcy to acquire greater property rights than it was entitled to prior to bankruptcy.”); Brown v. Dellinger (In re Brown), 734 F.2d 119, 124 (2nd Cir.1984) (“It is true of course that upon the filing of a petition in bankruptcy, the bankruptcy estate can have no greater interest in property included in it than the debtor had when the petition was filed.”); Moody v. Amoco Oil Co., 734 F.2d 1200, 1213 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 386, 83 L.Ed.2d 321 (1984) (“[Whatever rights a debtor has in property at the commencement of the case continue in bankruptcy — no more, no less.”); H.R.Rep. No. 595, 95th Cong., 1st Sess. 367 (1977) U.S.Code Cong. & Admin.News 1978, pp. 5787, 6323 (11 U.S.C. § 541 “... is not intended to expand the debtor’s rights against others more than they existed at the commencement of the case.”). Whether or not a debtor has an interest in property sufficient to bring it within the ambit of “property of the estate” is determined by state law or other applicable nonbankruptcy law. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979); Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1101 (2d Cir.1990); Sanyo Electric, Inc. v. Howard’s Appliance Corp. (In re Howard’s Appliance Corp.), 874 F.2d 88, 93 (2d Cir.1989). Purpura’s Chapter 11 petition schedules the property awarded by the state court to Maida as her equitable distribution of the marital assets and lists her as an unsecured creditor, albeit one whose claim is disputed. Driven by a desire to circumvent and avoid the Divorce Judgment, as supplemented and amended by the January 1991 Order, he considers the property awarded Maida under the pre-petition divorce decree to be property of the estate and that Maida’s rights thereto represent debt owing by him, which debt can be discharged" }, { "docid": "13374866", "title": "", "text": "rata with other unsecured creditors); In re Price, 154 B.R. 344, 346 (Bankr.N.D.Fla.1993) (same); In re Vann, 113 B.R. 704, 706 (Bankr.D.Colo.1990) (finding that until dissolution proceeding commenced and spouse takes action to perfect her interest her interest is subordinate to judgment lien creditor); Hoffman v. Hoffman, 157 B.R. 580, 583 (E.D.N.C.1992), aff'd, 998 F.2d 1009, 1993 WL 280359 (4th Cir.1993) (finding that spouse’s right to equitable distribution is a claim subject to discharge); In re Palmer, 78 B.R. 402, 406 (Bankr.E.D.N.Y.1987) (finding that ''[s]ince no equitable distribution award had vested at the time of the filing of the petition, the debtor’s property came into the estate free of the claims of the spouse”). . There is another line of cases which takes this issue one step further and finds that, although the spouse's interest in the debtor’s property did not vest pre-petition, there may be circumstances where it is appropriate to impose a constructive trust against the debt- or’s property in favor of the non-debtor spouse. See, e.g., Davis v. Cox, 356 F.3d 76 (1st Cir.2004), in which the First Circuit held that where a divorce proceeding was commenced pre-petition, but the state court order dividing marital property was entered post-petition, the debtor's spouse held a constructive trust against a certain IRA account held in the debtor's name such that the IRA did not become property of the estate upon the debtor's bankruptcy filing. The Davis Court, applying Maine law, found that given the debtor’s \"contemptuous behavior,” it was appropriate to impose a constructive trust in favor of the spouse. The Davis decision is consistent with the decision in In re Hilsen, 119 B.R. 435 (S.D.N.Y.1990). In Hilsen, the District Court reversed an order of the bankruptcy court which held that because a judgment of divorce was entered post-petition, the debtor's spouse had no vested property rights in a certain condominium owned by the debtor and the condominium therefore became property of the estate free and clear of the spouse’s interest. The District Court recognized that the bankruptcy court’s decision was consistent with New York law, but also recognized" }, { "docid": "18800977", "title": "", "text": "DECISION DISMISSING CHAPTER 11 CASE JEROME FELLER, Bankruptcy Judge. The protagonists in this matter are not strangers to legal fray. Nicholas E. Purpura (“Purpura” or “Debtor”) and Barbara Maida (“Maida”), the Debtor’s former spouse, slugged it out for eight (8) years in a divorce action at various levels of the New York State court system. After exhausting his appellate remedies and still unable to make peace with the equitable distribution awards made in the divorce action, Purpura commenced this Chapter 11 case. Once again, Maida was frustrated in her efforts to realize the cash, stock and real estate sale proceeds awarded to her approximately three years prior to the inception of the Chapter 11 case. Before the Court is a multi-tiered motion of Maida seeking duplicative and redundant relief in her seemingly interminable efforts to collect her due from a former spouse who refuses to pay. Stripped of its surplusage, Maida seeks, essentially, to lift the automatic stay or, in the alternative, requests a dismissal of Purpura’s Chapter 11 case on the ground that it was not filed in good faith. This Chapter 11 case is a classic two party conflict properly resolved in the non-bankruptcy forum. It was strategically initiated in a futile attempt to forestall Maida’s collection efforts. Purpura’s cognizable debts are not significant, and his assets are more than sufficient to pay such debts. Moreover, the assets awarded Maida under a pre-petition divorce decree are her sole and separate property and do not constitute property of the Debtor’s estate. Nor does an obligation to turnover these assets to Maida represent “debts” of Purpura dischargeable in bankruptcy. The Chapter 11 reorganization process is properly employed to restructure debts, not to rewrite history. However, the only reorganization purpose of this Chapter 11 case is the Debtor’s desire to “reorganize” the pre-petition equitable distribution awards granted his former wife by a state court. This cannot be done. In sum, since no legitimate purpose is served by this Chapter 11 case, cause exists to dismiss under 11 U.S.C. § 1112(b). I. THE MATRIMONIAL ACTION Purpura and Maida were married in July" }, { "docid": "19145581", "title": "", "text": "entry of the judgment is critical, under New York law, to cementing the spouse’s interest in the property. See In re Anjum, 288 B.R. 72, 76 (Bankr.S.D.N.Y. 2003) (“The courts have uniformly held that when a final judgment of divorce has not been entered at the time of the bankruptcy filing, the non-debtor spouse’s rights may be no greater than that of a general unsecured creditor.”); In re Cole, 202 B.R. 356, 360 (Bankr.S.D.N.Y.1996) (“If bankruptcy intervenes before the state court enters the [divorce] judgment, the trustee’s status as hypothetical lien creditor cuts off the non-debtor spouse’s inchoate rights in marital property, and leaves her with a general unsecured claim.” (internal citation omitted)). Because Tanya’s interest in the property did not completely vest until after the involuntary petition was filed the property is part of the bankruptcy estate. 11 U.S.C. § 541(a)(1). This is not to suggest that the state court decision was nullified by the subsequent filing of the petition. With respect to marital property, it is the exclusive province of the New York Supreme Court to adjudicate all rights, duties and entitlements as between spouses. See Siegel, N.Y. Prac. § 16 (4th ed.2006). To the extent that the state court ultimately establishes an equitable distribution award in favor of a non-debtor spouse after the debtor spouse has filed for bankruptcy, that award transforms the non-debtor spouse into a creditor of the bankruptcy estate within the meaning of 11 U.S.C. § 101(10). See In re Palmer, 78 B.R. 402, 406 (Bankr.E.D.N.Y.1987) (“The non-debtor spouse’s claim is an entitlement against the debtor’s estate, and thus she becomes one of the general unsecured creditors of the estate.”); In re Hilsen, 100 B.R. at 711 (citing Palmer for the same proposition). It is the exclusive province of the bankruptcy court, however, to determine how the state court judgment will affect the distribution of property in the bankruptcy proceeding. See 11 U.S.C. § 541. It is possible to conclude, in this case, that Vladimir abused the bankruptcy process in his dealings with his spouse. The bankruptcy court, however, does not lack means to" }, { "docid": "10231263", "title": "", "text": "court also entered an order on June 11, 1993 requiring the Debtor to turn over certain additional items of personal property to her former husband. . State law generally determines whether the debtor has an interest in property. Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992); Jones v. Atchison, 925 F.2d 209 (7th Cir.1991). Under Illinois law, a joint bank account is marital property subject to division. See 750 ILCS 5/503(a). In similar cases involving debtors’ pension plans, the majority of courts, including this Court, have determined .that divorce decrees dividing the pension proceeds do not create a debtor-creditor relationship between ex-spouses; rather, each party becomes an owner of a portion of the pension. See Bigelow v. Brown, 168 B.R. 331 (Bankr.N.D.Ill.1994); In re Potter, 159 B.R. 672, 674 (Bankr.N.Y.1993); In re Byler, 160 B.R. 178, 180 (Bankr.N.D.Okl.1993); In re Chandler, 805 F.2d 555 (5th Cir.1986) (monthly army retirement benefits awarded to wife pursuant to divorce decree were sole and separate property of wife and did not become property of debtor’s estate); accord In re Beattie, 150 B.R. 699, 701 (Bankr.S.D.Ill.1993). Even if the debtor spouse has actual possession of the property, the non-debtor's interest in the property is the non-debtor’s separate property and does not become property of the estate. Instead, the debtor spouse holds the non-debtor spouse’s property interest as a constructive trustee. Bigelow v. Brown, 168 B.R. 331 (Bankr.N.D.Ill.1994); In re Kinder, 133 B.R. 151, 152 (Bankr.W.D.Mo.C.D.1991), citing Bush v. Taylor, 912 F.2d 989, 993 (8th Cir.1990); In re Dahlin, 94 B.R. 79, 81 (Bankr.E.D.Va.1988), aff'd, 911 F.2d 721 (4th Cir.1990). Thus, case law supports a holding by this Court that the McCarthys’ divorce decree vested Denis McCarthy with equitable ownership of the remaining funds in the New Century Bank. Grayce McCarthy's obligation to turn over those funds put her in the position of constructive trustee for the benefit of her husband, not a debtor of her husband. In that regard, the Bankruptcy Code embellishes state law concerning trust arrangements by providing that ”[p]roperty in which the debtor holds, as of the" }, { "docid": "13374839", "title": "", "text": "“debt to his former spouse arising from the dissolution decree entered after he filed his bankruptcy petition is new post-petition debt and as such is not subject to his discharge”). There is also, however, a line of cases (applying New York law) which hold to the contrary. For example, in the case of In re Anjum, 288 B.R. 72, 76 (Bankr.S.D.N.Y.2003), Judge Adlai S. Hardin found that: [A] divorce judgment results only in a pre-petition, unsecured monetary claim on the part of the former spouse entitled to share ratably in the debtor’s estate with other unsecured claims. It matters not whether the divorce judgment was based upon an agreement between the spouses entered into before the bankruptcy filing, or upon an agreement made after the bankruptcy filing, or upon the decision of a matrimonial court without any agreement of the parties .... This analysis is consistent with the case law. The courts have uniformly held that when a final judgment of divorce has not been entered at the time of a bankruptcy filing, the non-debtor spouse’s rights may be no greater than that of a general unsecured creditor. Under New York law, one spouse’s rights in marital property owned by the other are inchoate and do not vest until entry of a judgment of divorce. In re Cole, 202 B.R. 356, 360 (Bankr.S.D.N.Y.1996). The result is that a non-debtor spouse does not have a recognizable property interest in a debtor’s property until entry of the divorce judgment. The debt- or’s property comes into the bankruptcy estate free from the spouse’s inchoate interest, and the spouse has a claim to the debtor’s property to the same extent as does any other unsecured creditor. If the divorce judgment is not entered pre-petition, the trustee’s rights as a hypothetical lien creditor cut off the spouse’s rights to the debtor’s property and the spouse is left with a claim against the estate which is discharged unless it is declared non-dis-chargeable under 11 U.S.C. §§ 523(a)(5) or (15). In the decision of In re Cole, 202 B.R. 356, 360 (Bankr.S.D.N.Y.1996), Chief Judge Stuart M. Bernstein" }, { "docid": "13374865", "title": "", "text": "divorce was granted ... [and therefore] claims constitute a non-dischargea-ble post-petition obligation”); In re Compagnone, 239 B.R. 841 (Bankr.D.Mass.1999) (finding that estranged wife did not have a \"right to payment” until the family court issued an order creating such a right); In re Antonino, 241 B.R. 883 (Bankr.N.D.Ill.1999) (finding that debt to ex-spouse arising out of a settlement agreement entered into post-petition was a post-petition obligation not subject to discharge); Scholl v. Scholl (In re Scholl), 234 B.R. 636 (Bankr.E.D.Pa.1999) (finding that commencement of divorce proceeding by debtor’s spouse did not give rise to any \"right to payment” or any pre-petition debt which could be discharged in bankruptcy); In re Perry, 131 B.R. 763, 766-67 (Bankr.D.Mass.1991) (finding ex-spouse’s contingent rights to property did not constitute a \"claim” against debtor, but imposed constructive trust upon certain property in favor of ex-spouse which was not avoidable under Section 544). . See also In re Lefrak, 223 B.R. 431, 439 (Bankr.S.D.N.Y.1998) (same); In re Polliard, 152 B.R. 51, 54-55 (Bankr.W.D.Pa.1993) (finding spouse’s claim for equitable distribution shares pro rata with other unsecured creditors); In re Price, 154 B.R. 344, 346 (Bankr.N.D.Fla.1993) (same); In re Vann, 113 B.R. 704, 706 (Bankr.D.Colo.1990) (finding that until dissolution proceeding commenced and spouse takes action to perfect her interest her interest is subordinate to judgment lien creditor); Hoffman v. Hoffman, 157 B.R. 580, 583 (E.D.N.C.1992), aff'd, 998 F.2d 1009, 1993 WL 280359 (4th Cir.1993) (finding that spouse’s right to equitable distribution is a claim subject to discharge); In re Palmer, 78 B.R. 402, 406 (Bankr.E.D.N.Y.1987) (finding that ''[s]ince no equitable distribution award had vested at the time of the filing of the petition, the debtor’s property came into the estate free of the claims of the spouse”). . There is another line of cases which takes this issue one step further and finds that, although the spouse's interest in the debtor’s property did not vest pre-petition, there may be circumstances where it is appropriate to impose a constructive trust against the debt- or’s property in favor of the non-debtor spouse. See, e.g., Davis v. Cox, 356 F.3d 76" }, { "docid": "18793015", "title": "", "text": "followed the Boyd decision in the case of Seablom v. Seablom, 45 B.R. 445 (1984), wherein the debtor was awarded certain jointly owned real property, and the non-debtor spouse upon payment of $25,000.00 was to convey her interest in such property to the debtor. The non-debt- or spouse was not expressly awarded a lien by the divorce court but this Court, in construing the totality of the circumstances, interpreted the decree as conditioning conveyance upon payment of the $25,000.00 in recognition of her pre-existing property interest — an interest she held as joint tenant. The law that has thus emerged is that if a spouse has a clearly defined and pre-ex-isting interest in property created prior to the divorce decree, that interest does not become part of the debtor’s estate upon filing of a bankruptcy petition and such interest is not defeated by section 523. This interest may spring from and be preserved by the existence of a constructive trust. 3. Although section 541 sets forth what property is to be included in the es tate, it is to state law that a bankruptcy court must turn when determining whether and to what extent the property belonged to the debtor. “Bankruptcy courts must still look to state law when determining the existence and nature of a debtor’s interest in property; that is, whether a debtor has any legal or equitable interest in an item. But once that determination is made, whether the property will come into the estate is a federal question.” In re Hurricane Elkhorn Coal Corp. II, 19 B.R. 609 (Bankr.Ky.1982). Nancy and Richard owned the Carrington house in joint tenancy up until the time of her conveyance to him by quit claim deed. Under North Dakota law, a joint tenancy interest is one owned by séveral persons in equal shares. See N.D.C.C. § 47-02-06. Thus, Nancy during the marriage had an undivided one-half interest in the property. Further, pursuant to N.D.C.C. § 47-18-05, the homestead of a married person cannot be conveyed or encumbered unless the instrument bears the signatures of both husband-and wife. By reason of" }, { "docid": "18793014", "title": "", "text": "lien avoidance action. See Boyd v. Robinson, 741 F.2d 1112 (8th Cir.1984). The issue in the Boyd case stemmed from a divorce decree which awarded the parties’ home to the debtor subject to a lien in favor of the non-debtor spouse for one-half of the equity. The amount of this lien was fixed by the divorce court at $7,000.00. The debtor, in filing for bankruptcy under Chapter 7, declared the entire home exempt. She then sought to have the non-debtor spouse’s lien declared void pursuant to section 522(f)(1). The appellate court noted that in order to avoid a lien under section 522(f)(1), the lien must have attached to an interest of the debtor in exempt property. The court held that the non-debtor husband had an undivided one-half interest in the equity of the home which existed prior to the divorce and that the lien did not attach to any interest of the debtor in the home but merely recognized a remedy to enforce a pre-existing property right in the home. Our own court has previously followed the Boyd decision in the case of Seablom v. Seablom, 45 B.R. 445 (1984), wherein the debtor was awarded certain jointly owned real property, and the non-debtor spouse upon payment of $25,000.00 was to convey her interest in such property to the debtor. The non-debt- or spouse was not expressly awarded a lien by the divorce court but this Court, in construing the totality of the circumstances, interpreted the decree as conditioning conveyance upon payment of the $25,000.00 in recognition of her pre-existing property interest — an interest she held as joint tenant. The law that has thus emerged is that if a spouse has a clearly defined and pre-ex-isting interest in property created prior to the divorce decree, that interest does not become part of the debtor’s estate upon filing of a bankruptcy petition and such interest is not defeated by section 523. This interest may spring from and be preserved by the existence of a constructive trust. 3. Although section 541 sets forth what property is to be included in the es" }, { "docid": "18800998", "title": "", "text": "prior to the bankruptcy filing. The pre-petition finality of all these events divested Purpura of all legal and equitable interest in the property awarded Maida under the Divorce Judgment, as amended and supplemented by the January 1991 Order. Those property interests vested in Maida pre-petition and constituted her sole and separate property. Purpura could not, by improperly withholding property belonging to Maida, make them property of the estate under 11 U.S.C. § 541(a)(1). The Divorce Judgment, as supplemented and amended by the January 1991 Order, by its terms, awarded Maida 35% of the Bear Steams assets, quantified that 35% interest into specific sums of cash and stock and further granted Maida a specific 50% interest in the two Staten Island houses. The Divorce Judgment, awarding Purpura 65% of the Bear Stearns assets and 50% of the net proceeds from the two Staten Island houses, further divested him of any interest in the property awarded his former wife. Accordingly, when the Chapter 11 case was filed on July 14, 1993, Purpura owned nothing more than 65% of the Bear Stearns assets and 50% of the two houses. Because Purpura, at the time of his Chapter 11 filing, had no interest in the property awarded Maida, his obligation to deliver such property to her was not a “debt” or obligation to pay that could be discharged in bankruptcy. A “debt” is defined by the Bankruptcy Code as “liability on a claim” and requires that there be a “right to payment” from the debtor. See 11 U.S.C. § 101(12) and § 101(5)(A). This Debtor, however, has no obligation pay Maida from his own property, but was merely to act, in effect, as an agent for the transfer of property to its rightful owner, i.e., his former wife. Thus, while the Divorce Judgment may well have effected a division of property, it did not create a debt or obligation dischargeable in bankruptcy. Succinctly stated, the Divorce Judgment created property interests and not debt. C. THE DIVORCE JUDGMENT, AS SUPPLEMENTED AND AMENDED BY THE JANUARY 1991 ORDER, IS RES JUDICATA Under the res judicata doctrine," }, { "docid": "1926973", "title": "", "text": "Korper, 131 Ill.App.3d 753, 757, 475 N.E.2d 1333, 1336, 86 Ill.Dec. 766, 769 (1985). The rights of the non-participant spouse in the pension or retirement fund of the other remain inchoate during the marriage. However, upon entry of a judgment of divorce, ownership vests in the spouse to whom such property has been distributed. See e.g. Roehn, 216 Ill.App.3d at 894, 576 N.E.2d at 562, 159 Ill.Dec. at 893 (insofar as ex-wife’s beneficial interest in pension fund was acquired during the marriage, upon dissolution of marriage ex-wife became co-owner of the pension benefits as marital property). The majority view among courts considering the question in the bankruptcy context is in accord with Illinois law, i.e., that a former spouse’s interest in a debtor’s pension becomes the sole and separate property of the nondebtor spouse upon entry of a final judgment of divorce. The divorce decree does not create a debtor/creditor relationship between the debtor spouse and the nondebtor spouse. Instead, e'ách becomes an owner of a portion of the pension. In re Potter, 159 B.R. 672, 674 (Bankr.N.Y.1993); see generally In re Byler, 160 B.R. 178, 180 (Bankr.N.D.Okl.1993); Matter of Newcomb, 151 B.R. 287 (Bankr.M.D.Fla.1993); In re Resare, 142 B.R. 44, 46 (Bankr.D.R.I.1992), affd 154 B.R. 399 (D.R.I.1993); In re Long, 148 B.R. 904 (Bankr.W.D.Mo.1992) (interest of non-employee spouse in non-military pension is the sole property of such spouse); In re Ledvinka, 144 B.R. 188, 192 (Bankr.M.D.Ga.1992) (citing Bush v. Taylor, 912 F.2d 989, 993 (8th Cir.1990)); In re Zick, 123 B.R. 825 (Bankr. E.D.Wis.1990) (where prepetition divorce decree awarded wife portion of pension, that portion did not constitute husband’s property at time of bankruptcy filing and thus could not be excepted from discharge); In re Farrow, 116 B.R. 310 (Bankr.M.D.Ga.1990); In re Benich, 811 F.2d 943, 945 (5th Cir.1987); In re Chandler, 805 F.2d 555 (5th Cir.1986) (monthly army retirement benefits awarded to wife pursuant to divorce decree were sole and separate property of wife and did not become property of the debtor’s estate); accord In re Beattie, 150 B.R. 699, 701 (Bankr.S.D.Ill.1993). Even if the debtor spouse has" }, { "docid": "18793013", "title": "", "text": "one of property settlement under section 523(a)(5) but was a division of community-held property into separate property. The debtor held legal title to each monthly check, but the non-debtor spouse held an equitable interest in the portion awarded to her. The court held the debtor to be constructive trustee for the non-debtor spouse of her equitable interest. The distinction between these two cases is that the obligation in Tressler was merely a debt not arising from any pre-petition equitable interest in particular property. In Brown, however, the non-debtor spouse was said to have a specific interest in specific property which never became a part of the bankruptcy estate and thus the interest was not susceptible of discharge under section 523. There are very few cases which bear on this distinction, but the distinction does exist and is perhaps best characterized as an emerging departure from strictly categorizing divorce decree awards as either support or property settlements under section 523(a)(5). The Eighth Circuit Court of Appeals recently considered the issue in context of a section 522(f)(1) lien avoidance action. See Boyd v. Robinson, 741 F.2d 1112 (8th Cir.1984). The issue in the Boyd case stemmed from a divorce decree which awarded the parties’ home to the debtor subject to a lien in favor of the non-debtor spouse for one-half of the equity. The amount of this lien was fixed by the divorce court at $7,000.00. The debtor, in filing for bankruptcy under Chapter 7, declared the entire home exempt. She then sought to have the non-debtor spouse’s lien declared void pursuant to section 522(f)(1). The appellate court noted that in order to avoid a lien under section 522(f)(1), the lien must have attached to an interest of the debtor in exempt property. The court held that the non-debtor husband had an undivided one-half interest in the equity of the home which existed prior to the divorce and that the lien did not attach to any interest of the debtor in the home but merely recognized a remedy to enforce a pre-existing property right in the home. Our own court has previously" }, { "docid": "13374841", "title": "", "text": "explains that “DQf bankruptcy intervenes before the state court enters the judgment, the trustee’s status as a hypothetical lien creditor cuts off the non-debtor spouse’s inchoate rights in marital property ..., and leaves her with a general unsecured claim.” Cole, 202 B.R. at 360 (citations omitted). On the other hand, where a divorce decree is entered pre-petition which declares an award of equitable distribution and transfers title to the non-debtor spouse, the property does not become property of the debtor spouse’s estate. See In re Greenwald, 134 B.R. 729, 731 (Bankr.S.D.N.Y.1991) (analyzing cases but finding that award entered pre-petition and spouse’s interest did not become property of the estate). This Court declines to follow those cases which hold that a divorce judgment entered post-petition creates a post-petition debt not subject to the discharge. Rather, this Court agrees with the reasoning in Anjum and Cole and those other cases which hold that where a divorce action is commenced pre-petition, but the divorce judgment is not entered until after the petition is filed, a debtor’s ex-spouse holds but an unsecured claim against the estate. Therefore, the Court finds that Weissberg holds a claim against the estate that arose prior to the time that the debtor filed his bankruptcy petition. The next step in the analysis is whether that claim is non-dischargeable under Section 523. Is Weissberg’s Claim Non-Dischargeable under Section 523? The exceptions to discharge relevant in this case are found in Section 523(a)(5) and (15) which provide, in relevant part, that: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, ... or property settlement agreement, but not to the extent that — ... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support, ... or (15) not" }, { "docid": "18800996", "title": "", "text": "under a Chapter 11 reorganization plan. He is wrong on both counts; i.e., the property awarded Maida under the pre-petition divorce decree is her property and not the property of the estate, and Purpura owes no “debt” to Maida dis-chargeable in bankruptcy. It is widely recognized that property awarded to a non-debtor spouse pursuant to a divorce decree finalized prior to the debtor spouse’s bankruptcy is not part of the debt- or’s estate. See, e.g., Wilson v. Wilson (In re Wilson), 158 B.R. 709 (Bankr.S.D.Ohio 1993) (portion of debtor’s retirement fund awarded pre-petition to non-debtor spouse under state court divorce decree is not property of the estate); Adamo v. Ledvinka (In re Ledvinka), 144 B.R. 188 (Bankr.M.D.Ga.1992) (non-debtor spouse’s entitlement to portion of debtor’s retirement funds under pre-petition marital settlement agreement is her sole and separate property); In re Greenwald, 134 B.R. 729 (Bankr.S.D.N.Y.1991) (rights in various items of property, including cash, grant ed under pre-petition equitable distribution award upon divorce, vested in non-debtor spouse prior to filing under New York Law, and thus such property was not property of the debtor’s estate); Boyer v. Boyer (In re Boyer), 104 B.R. 497 (Bankr.S.D.Fla.1989) (funds awarded non-debtor spouse under pri- or divorce decree are not property of the estate of the debtor spouse). The applicable legal precept has been articulated by a respected treatise as follows: It is generally recognized that once the divorce decree becomes final, the property interests awarded are vested pursuant to the decree. As long as the property awarded existed at the time of the decree, even if it was cash, a prebankruptcy court order divesting the debtor spouse of an interest in the property will normally keep that property out of the debtor spouse’s bankruptcy estate. Henry J. Sommer et al., Collier Family Law And The Bankruptcy Code § 2.01[5] at 2-11 (1994 ed.) Long before Purpura’s Chapter 11 filing, the state court in the Matrimonial Action, construing New York law and after extensive litigation, entered a divorce decree awarding equitable distribution of the marital assets. The appeals process, affirming the trial court’s determinations, were concluded" }, { "docid": "18800995", "title": "", "text": "commencement of the case.”). Whether or not a debtor has an interest in property sufficient to bring it within the ambit of “property of the estate” is determined by state law or other applicable nonbankruptcy law. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979); Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1101 (2d Cir.1990); Sanyo Electric, Inc. v. Howard’s Appliance Corp. (In re Howard’s Appliance Corp.), 874 F.2d 88, 93 (2d Cir.1989). Purpura’s Chapter 11 petition schedules the property awarded by the state court to Maida as her equitable distribution of the marital assets and lists her as an unsecured creditor, albeit one whose claim is disputed. Driven by a desire to circumvent and avoid the Divorce Judgment, as supplemented and amended by the January 1991 Order, he considers the property awarded Maida under the pre-petition divorce decree to be property of the estate and that Maida’s rights thereto represent debt owing by him, which debt can be discharged under a Chapter 11 reorganization plan. He is wrong on both counts; i.e., the property awarded Maida under the pre-petition divorce decree is her property and not the property of the estate, and Purpura owes no “debt” to Maida dis-chargeable in bankruptcy. It is widely recognized that property awarded to a non-debtor spouse pursuant to a divorce decree finalized prior to the debtor spouse’s bankruptcy is not part of the debt- or’s estate. See, e.g., Wilson v. Wilson (In re Wilson), 158 B.R. 709 (Bankr.S.D.Ohio 1993) (portion of debtor’s retirement fund awarded pre-petition to non-debtor spouse under state court divorce decree is not property of the estate); Adamo v. Ledvinka (In re Ledvinka), 144 B.R. 188 (Bankr.M.D.Ga.1992) (non-debtor spouse’s entitlement to portion of debtor’s retirement funds under pre-petition marital settlement agreement is her sole and separate property); In re Greenwald, 134 B.R. 729 (Bankr.S.D.N.Y.1991) (rights in various items of property, including cash, grant ed under pre-petition equitable distribution award upon divorce, vested in non-debtor spouse prior to filing under New York Law, and thus such" }, { "docid": "18800997", "title": "", "text": "property was not property of the debtor’s estate); Boyer v. Boyer (In re Boyer), 104 B.R. 497 (Bankr.S.D.Fla.1989) (funds awarded non-debtor spouse under pri- or divorce decree are not property of the estate of the debtor spouse). The applicable legal precept has been articulated by a respected treatise as follows: It is generally recognized that once the divorce decree becomes final, the property interests awarded are vested pursuant to the decree. As long as the property awarded existed at the time of the decree, even if it was cash, a prebankruptcy court order divesting the debtor spouse of an interest in the property will normally keep that property out of the debtor spouse’s bankruptcy estate. Henry J. Sommer et al., Collier Family Law And The Bankruptcy Code § 2.01[5] at 2-11 (1994 ed.) Long before Purpura’s Chapter 11 filing, the state court in the Matrimonial Action, construing New York law and after extensive litigation, entered a divorce decree awarding equitable distribution of the marital assets. The appeals process, affirming the trial court’s determinations, were concluded prior to the bankruptcy filing. The pre-petition finality of all these events divested Purpura of all legal and equitable interest in the property awarded Maida under the Divorce Judgment, as amended and supplemented by the January 1991 Order. Those property interests vested in Maida pre-petition and constituted her sole and separate property. Purpura could not, by improperly withholding property belonging to Maida, make them property of the estate under 11 U.S.C. § 541(a)(1). The Divorce Judgment, as supplemented and amended by the January 1991 Order, by its terms, awarded Maida 35% of the Bear Steams assets, quantified that 35% interest into specific sums of cash and stock and further granted Maida a specific 50% interest in the two Staten Island houses. The Divorce Judgment, awarding Purpura 65% of the Bear Stearns assets and 50% of the net proceeds from the two Staten Island houses, further divested him of any interest in the property awarded his former wife. Accordingly, when the Chapter 11 case was filed on July 14, 1993, Purpura owned nothing more than 65%" } ]

[ { "docid": "2102462", "title": "", "text": "by that unpopularity. See Planned Parenthood v. Arizona, 789 F.2d 1348, 1354 (9th Cir.1986). Plaintiffs have failed to show by specific evidence on the record that receipt of a reasonable hourly rate times the number of hours reasonably spent on these matters does not constitute a fully compensatory fee. See id. See also Blum, 465 U.S. at 898-90, 104 S.Ct. at 1548-50. We, therefore, affirm the denial of a multiplier. This matter is remanded to the district court for a redetermination of a reasonable attorneys’ fee to compensate plaintiffs’ counsel for their efforts in the 1-205, contempt, and fee application matters. Plaintiffs are also entitled to a reasonable fee for their attorneys’ services in prosecuting this appeal. On remand, the district court should determine the time spent and fees to be awarded on this appeal. See Probe, 780 F.2d at 785-86; Williams v. Alioto, 625 F.2d 845, 849-50 (9th Cir.1980) (per curiam), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981); Rosenfeld v. Southern Pacific Co., 519 F.2d 527, 530 (9th Cir.1975) (allowing compensation for services rendered solely to obtain the allowance of attorney’s fees). See also Manhart v. City of Los Angeles, Dept. of Water & Power, 652 F.2d 904, 909 (9th Cir.1981), vacated on other grounds, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983). AFFIRMED IN PART; REVERSED AND REMANDED IN PART. . After entry of its original orders in this action, the district court retained jurisdiction in the case. In August 1982, the court sua sponte ordered the action to be dismissed, finding that it was no longer necessary to retain jurisdiction. Counsel for the plaintiff class successfully obtained reinstatement of the action. The district court denied plaintiffs' application for attorneys’ fees in the amount of $3,312 for services relating to the reinstatement proceeding. Plaintiffs do not appeal that ruling. . Plaintiffs based their application for $160,130 in attorneys’ fees on the current hourly rates billed by their counsel multiplied by the total number of hours submitted, modified by a multiplier of two. . Mr. LaBarre's activities with regard to the 1-205" } ]

[ { "docid": "8342358", "title": "", "text": "e.g., Goldberger v. Integrated Res., Inc., 209 F.3d at 50 (“[W]e encourage the practice of requiring documentation of hours as a ‘cross check’ on the reasonableness of the requested percentage.”). Here, the district court reduced the percentage fee award from the requested 20% to 16% based on its Goldberger analysis. In undertaking the lodestar cross check, the court concluded that “[t]he only argument against [the 1.25 multiplier imposed by the court, as opposed to the 1.56 multiplier counsel requested] is that it is simply too low.” Carlson v. Xerox Corp., 596 F.Supp.2d at 413. The district court noted that, had it made a 90% reduction in contract attorney time in its lodestar calculation, the resulting multiplier would be 3.59, still below the 3.6 average and in line with the 3.1 median for similar cases. Thus, even if we were to accept appellants’ argument that contract attorney time should be counted as an expense rather than as part of the lodestar calculation—a theory open to debate, see In re Enron Corp. Sec. Deriv. & “ERISA ” Litig., 586 F.Supp.2d 732, 782-83 (S.D.Tex.2008); In re Tyco Int’l, Ltd. Multidistrict Litig., 535 F.Supp.2d 249, 272 (D.N.H.2007)—we could not conclude that the fee awarded in this case is unreasonable. b. Reasonable Paying Client Appellants also urge us to set aside the fee because it exceeds the amount a reasonable client would be willing to pay. Cf. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008). We are not persuaded. Unlike in the context of fee-shifting statutes, which we examined in Arbor Hill, attorneys’ fees are awarded in common fund cases in order to “prevent[] unjust enrichment of those benefitting from a lawsuit without contributing to its cost.” Goldberger v. Integrated Res., Inc., 209 F.3d at 47. Thus, we have said that attorneys who create a fund are “entitled to a reasonable fee—set by the court—to be taken from the fund.” Id.; see also In re Agent Orange Prod. Liab. Litig., 818 F.2d 216, 222 (2d Cir.1987) (“[A]n attorney who creates a fund for the benefit of a" }, { "docid": "6945813", "title": "", "text": "a “substantial contribution,” differentiation is required. It is well settled that uncertainties arising because of inadequate records must be resolved against the applicant. New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1142 (2nd Cir.1983) (citing In re Hudson & Manhattan Railroad Co., 339 F.2d 114, 115 (2nd Cir.1964) and E.E.O.C. v. Sage Realty Cory., 521 F.Supp. 263, 273-74 (S.D.N.Y.1981)); General Oil, 51 B.R. at 801. The above fees represent Wisehart’s lodestar rate. The lodestar rate is the product of the number of hours reasonably expended multiplied by a reasonable hourly rate, and serves as the initial basis from which to fix fees. Seventy-four percent of the requested fees, performed by Wise-hart’s senior partner, were billed at an hourly rate of $265.00, sixteen percent at a rate of $75.00, and the remaining ten percent at a rate ranging from $75.00 to $165.00. By themselves and without a “risk multiple,” the fees are on the high side of the reasonableness spectrum. Com-pensable services thus amount to fees of $106,130.25 Wisehart’s application, however, requests payment of twice Wisehart’s lodestar rate based upon a “risk multiple.” In ordinary fee shifting cases, the decision to use multipliers to adjust the lodestar figure rests in the discretion of the trial court. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Even in those cases which do not concern the underlying tensions of § 503(b)(3) and (4), the instances in which a district court may allow such a multiplier has been severely restricted by the Supreme Court in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 70 L.Ed.2d 891 (1984). In re “Agent Orange” Products Liability Litigation, 818 F.2d 226, 234 (2d Cir.), cert. denied sub. nom. Schwartz v. Dean, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). As observed in Agent Orange, the Supreme Court has decreed that fee enhancement above a firm’s lodestar rates should not be granted absent specific evidence establishing “that the quality of the service rendered was superior to that one should reasonably expect ... and that the" }, { "docid": "10283744", "title": "", "text": "amount. In re: Quantum Health Resources, 962 F.Supp. 1254, 1256 (1997) The “lodestar” is obtained by multiplying the total attorney-hours on a case by reasonable hourly rate (or rates). The court would then exercise its discretion to determine the appropriate factor, if any to enhance or reduce the lodestar to reflect the risk of success involved in the matter. See Lindy Brothers Builders v. American Radiator & Standard Sanitary Corp (Lindy I and Lindy II), 487 F.2d 161 (3rd Cir.1973) (Lindy I) and 540 F.2d 102 (3rd Cir.1976) (en bane) (Lindy II). A risk multiplier is not merely available in a common fund case but can be mandated if the court finds that counsel had no sure source of compensation. Continental Illinois Securities Litigation, 962 F.2d 566, 569 (9th Cir.1992) (Posner, J.). The Seventh Circuit has held that risk with regard to the probability of success in the particular type of litigation must be assessed ex ante, that is, as viewed from the outset of the case. Harman, 945 F.2d at 976. The use of the multiplier assumes that no matter how many hours are invested, there was, at the outset, the possibility of no recovery. The Fifth Circuit appears to evaluate risk of success throughout the course of the litigation. See In re Shell Oil Refinery, Shell Oil Refinery, 155 F.R.D. 552 (E.D.La.1993) (risk discussed at outset of the litigation and with regard to success at trial). Multipliers ranging from one to four frequently are awarded in common fund cases when the lodestar method is applied. In re Shell Oil Refinery, 155 F.R.D. 552, 573 (E.D.La.1993) (applying risk multiplier of 3 to 3.5) (and cases cited at note 55); In re Corrugated Container Antitrust Litigation, 1983 WL 1872 (S.D.Tex.1983) (awarding multipliers up to 4.0); Rievman v. Burlington N. Ry. Co., 118 F.R.D. 29 (S.D.N.Y.1987) (3.26 for complexity, risks, and benefit to class); Mister v. Illinois Central Gulf Railroad Co, No 81-3006 (S.D.Ill. Aug. 5, 1993) (where the court noted that if ever there was a case for the maximum multiplier to be used, it was this common fund case" }, { "docid": "22271852", "title": "", "text": "94, 701, 1992 WL 349768 (S.D.N.Y. Nov. 5, 1992) (post-Dague decision using percentage method, but stating that risk multiplier of 2 to 3 would be appropriate under lodestar method), with Nensel v. Peoples Heritage Fin. Group, Inc., 815 F.Supp. 26, 30 (D.Me.1993) (holding that Dague's proscription of the use of risk multipliers applies to common fund cases); In re Bolar Pharmaceutical Co. Sec-Litig., 800 F.Supp. 1091, 1095 (E.D.N.Y.1992) (same); In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 619 (1st Cir.1992) (Lay, J., concurring) (same). . See, e.g., Harman, 945 F.2d at 975-76; Brown, 838 F.2d at 454-56; In re “Agent Orange\", 818 F.2d at 234 n. 2, 236 (characterizing \"the risk-of-success factor as 'perhaps the foremost' factor to be considered” when calculating a reasonable fee in common fund cases). . In Skelton, the Seventh Circuit also dispelled a related concern, not mentioned explicitly in Dague, about awarding risk multipliers in fee-shifting cases: that \"risk multipliers tend to penalize the parties with the strongest defenses. The stronger the defense, the higher the risk involved in bringing the suit and the greater the multiplier necessary to compensate plaintiff's attorney for bringing the action. Thus, defendants with better cases pay higher plaintiffs attorney fees.\" 860 F.2d at 253. Again, this is not a concern in common fund cases since the burden of compensating class counsel falls on the plaintiff class, not the defendants. Id. . The abuse of discretion standard \"applies not only to the basic fee but also to multipliers.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986) (internal quotation marks omitted). . The district court itself acknowledged in its initial fee decision that the lodestar rates were \"the customary fees charged to fee paying clients.” WPPSS II, 779 F.Supp. at 1099. . These enhancements increased the overall lodestar from $27 million to $32.46 million, yielding a \"blended” multiplier of 1.2. . This is significant given that over 36 percent of the hours expended by the Gold firm are attributable to attorneys who had left-prior to the filing of" }, { "docid": "2208459", "title": "", "text": "per hour) as a reasonable rate for the time the petitioners spent traveling. 590 F.Supp. at 986, 987. . One firm also billed 3.5 hours for a paralegal's \"travel to association of the bar research,\" see Milberg Weiss Bershad Specthrie & Lerach, Plaintiff's Exhibit H but the Court has already disallowed all paralegal hours. . Similar to the petitioners in Zitnay Plaintiffs' counsel have failed to show that they were en gaged in legal work for Plaintiffs during their billed travel time. . See Appendix 15. . The Court would have allowed reimburse ment for the remaining few billed activities not covered within any of the aforementioned cate gories of activities that have been discussed above. . The Court notes that the requested multiplier of 292% is the result of an arbitrary mathemati cal calculation to ensure that Plaintiffs' counsel could seek the maximum cap of $2 in attorneys' fees and expenses that it negotiated in the clear sailing agreement. It is not based on any substantive grounds involving contingency quality of representation or any other factor that courts consider in evaluating the appropri ateness of a multiplier. . Courts have held that the \"contingent fee risk is the single most important factor in awarding a multiplier; perhaps it is the only remaining valid basis now recognized by the caselaw of multipliers.” In Re Union Carbide Corp. Consumer Products Business Securities Litigation, 724 F.Supp. 160, 164 (S.D.N.Y.1989). See also In re “Agent Orange\" Product Liability Litigation, 818 F.2d 226, 236 (2d Cir.1987). . The United States Supreme Court recently held in City of Burlington v. Dague, — U.S. -, -, 112 S.Ct. 2638, 2639, 120 L.Ed.2d 449 60 U.S.L.W. 4717, 4717 (U.S. June 24, 1992), that the enhancement for contingency of a fee award beyond the lodestar amount is not permitted under the fee-shifting statutes at issue. The Court noted that \"the risk of loss in a particular case is the product of two factors: (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits.” Id. at -, 112 S.Ct. at 2641. The" }, { "docid": "23348793", "title": "", "text": "900 n. 16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Subsequently, the Third Circuit Task Force Report in 1985 outlined the problems with the lodestar method and recommended that courts use the percentage-of-recovery method instead of the lodestar method in common fund cases. After this instruction from the Supreme Court and the release of the Task Force Report, courts across the country regularly employed the percentage method to set fees in common fund cases. . Although we have emphasized the seven-factor analysis required in class action fee cases set forth in Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n. 1 (3d Cir.2000), Gunter is not listed in this chart because the settlement in that case was less than $100 million. . In several cases, the class settlement exceeded $100 million but the lodestar method was used to determine attorneys' fees. See, e.g., McLendon v. Continental Group, Inc., 872 F.Supp. 142 (D.N.J.1994) (settlement was for more than $400 million, and lodestar multiplier of 1.5 was used to award attorneys’ fees); In re Shell Oil Refinery, 155 F.R.D. 552 (E.D.La.1993) ($170 million settlement and $31.8 million in fees, which represented a 3.25 lodestar multiplier and approximately 18% of the total settlement); In re Washington Public Power Supply Sys. Sec. Litig., 779 F.Supp. 1056 (D.Ariz.1991) ($687 million settlement, $32 million in attorneys’ fees, 1.2 lodestar multiplier, and attorneys’ fees were 4.7% of total settlement); In re Baldwin-United Corp. Litig., 1986 WL 12195 (S.D.N.Y. June 27, 1986) ($183.8 million settlement, $7.5 million in attorneys’ fees, lodestar multiplier of 2, and fees were 4.1% of total settlement); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985), aff'd. in part 818 F.2d 226 (2d Cir.1987) ($180 million settlement, $10.7 million in attorneys’ fees, lodestar multiplier of 1.25 to 1.75, and fees were 6% of settlement). Additionally, it should be noted that the chart includes a substantial number of the post 1985 cases involving large settlements and fees granted as a percentage of the total settlement, but the chart is not comprehensive. We feel that the selection of cases in the chart are" }, { "docid": "16360714", "title": "", "text": "of common fund); Meyer v. Citizens and Southern National Bank, 117 F.R.D. 180 (M.D.Ga.1987) (30% of common fund); Northwestern Fruit Co. v. A. Levy & J. Zentner Co., 117 F.R.D. 670 (E.D.Cal.1987) (29% of common fund); Levit v. Filmways, Inc., 620 F.Supp. 421 (D.Del.1985) (33V3% of common fund). Another method for computing an appropriate attorney fee award in a common fund case is to apply a “multiplier” to the “lodestar” amount. In In re Cenco, Inc. Securities Litigation, 519 F.Supp. 322 (N.D.Ill.1981), the Court found that a multiplier of four times the “lodestar” amount was appropriate. In In re Beverly Hills Fire Litigation, 639 F.Supp. 915 (E.D.Ky. 1986), the Court found that a multiplier of five was appropriate. In the present case, the total lodestar amount at current rates is approximately $2.05 million and at historic rates is approximately $1.9 million—for a multiplier of 2.4 or 2.6, respectively, concerning Class Counsel’s $5 million attorney fee request. This 2.4-2.6 range of multiplier which Class Counsel is requesting in this litigation to support its $5 million attorney fee request is reasonable and conservative when compared to similar cases. Based upon the foregoing, this Court finds that Class Counsel’s application for an attorney fee award of $5 million is fair, reasonable, and warranted. Class Counsel also seeks an award of $164,580.05 for reimbursement of actual expenses incurred from July 1985 through March 31, 1991, plus reimbursement for all additional expenses incurred during the period from April 1, 1991 until the final distribution of the second Settlement installment is made in 1992. There are no objections to this request. Based upon the undisputed evidence in the record, these expenses are reasonable and Class Counsel is entitled to their full recovery of these expenses from the common fund. III. MOTION FOR CLASS REPRESENTATIVE INCENTIVE AWARDS The six Class Representatives in this case (Enterprise Energy Corp., Beldon & Blake Corporation, Allstates Oil and Producing Co., Inc., Energy Development Corp., Edco Drilling and Production, and The Clinton Oil Company) have also applied to this Court for class representative incentive awards in the amount of $50,000 each, for" }, { "docid": "6473824", "title": "", "text": "lodestar can be tested by the court’s familiarity with the case.”); see also In re Rite Aid Corp., 396 F.3d 294, 306-07 (2005). Instead, I may use Class Counsels’ estimate of the hours they have spent working on this case. By the end of the administration of this settlement, Class Counsel will have expended an estimated 4,694.40 hours in this litigation. (Mem. Supp. Mot. Award Attorney Fees 4.) Though Class Counsel have not submitted the rate at which they would have billed these hours, I will calculate the lodestar figure assuming they could bill all of these hours at the top end of the market rate which is approximately $500 per hour. The resulting lodestar figure is $2,347,200. The requested award in this case, approximately $10 to $12.5 million, yields a lodestar multiplier in this case of 4.2 to 5.3 and an hourly rate of $2,130.20 to $2,662.75. I must be cautious of placing too much weight on these numbers lest I “re-introduce[ ] the problems of the lodestar method.” Task Force on Contingent Fees, 25 Rev. Litig. at 471. Also, the cross-check results do not “supplant the court’s detailed inquiry into the attorneys’ skill and efficiency in recovering the settlement....” In re Cardinal Health, 528 F.Supp.2d at 764. Nevertheless, the lodestar figure and multiplier reveal that the requested fee rewards Class Counsel more than generously relative to the time expended on this matter. Courts have generally held that lodestar multipliers falling between 2 and 4.5 demonstrate a reasonable attorneys’ fee. See Goldenberg, 33 F.Supp.2d at 439 n. 6; see also In re Microstrategy, Inc., 172 F.Supp.2d at 789 (reducing fee award from a requested percentage, which would have resulted in an award approximately four times the lodestar figure, to a percentage that resulted in an award 2.6 times the lodestar figure); In re Cendant, 243 F.3d at 742 (“Multiples ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied.”) (internal quotations and citations omitted); but see In re Cardinal Health, 528 F.Supp.2d at 768 (finding that requested fee amount with a" }, { "docid": "22271848", "title": "", "text": "motion for reconsideration. . The history of this litigation is recounted in In re Washington Pub. Power Supply Sys. Sec. Litig., 720 F.Supp. 1379 (D.Ariz.1989) [hereinafter WPPSS 7] and In re Washington Pub. Power Supply Sys. Sec.Litig., 779 F.Supp. 1063 (D.Ariz.1990). . Under the lodestar/multiplier method, the district court first calculates the \"lodestar\" by multiplying the reasonable hours expended by a reasonable hourly rate. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986). The court may then enhance the lodestar with a \"multiplier,” if necessary, to arrive at a reasonable fee. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984). Under the percentage method, the court simply awards the attorneys a percentage of the fund sufficient to provide plaintiffs’ attorneys with a reasonable fee. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). Whether a court applies the lodestar or the percentage method, \"we require only that fee awards in common fund cases be reasonable under the circumstances.” Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990) (emphasis added). Because a reasonable fee award is the hallmark of common fund cases, and because arbitrary, and thus unreasonable, fee awards are to be avoided, neither method should be applied in a formulaic or mechanical fashion. . The D.C. Circuit also requires the use of the percentage method in common fund cases. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C.Cir.1993). However, other circuits leave it to the discretion of the district court to choose between the lodestar and percentage methods in common fund cases. See, e.g., Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516 (6th Cir.1993); Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir.1992); Harman v. Lyphomed, Inc., 945 F.2d 969, 975 (7th Cir.1991); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir.1988); In re \"Agent Orange\" Prod.Liab.Litig., 818 F.2d 226, 232 (2d Cir.1987). . The attorneys in Graulty had a contingent fee arrangement with some of the plaintiffs (the estates receiving 30" }, { "docid": "23348794", "title": "", "text": "Refinery, 155 F.R.D. 552 (E.D.La.1993) ($170 million settlement and $31.8 million in fees, which represented a 3.25 lodestar multiplier and approximately 18% of the total settlement); In re Washington Public Power Supply Sys. Sec. Litig., 779 F.Supp. 1056 (D.Ariz.1991) ($687 million settlement, $32 million in attorneys’ fees, 1.2 lodestar multiplier, and attorneys’ fees were 4.7% of total settlement); In re Baldwin-United Corp. Litig., 1986 WL 12195 (S.D.N.Y. June 27, 1986) ($183.8 million settlement, $7.5 million in attorneys’ fees, lodestar multiplier of 2, and fees were 4.1% of total settlement); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985), aff'd. in part 818 F.2d 226 (2d Cir.1987) ($180 million settlement, $10.7 million in attorneys’ fees, lodestar multiplier of 1.25 to 1.75, and fees were 6% of settlement). Additionally, it should be noted that the chart includes a substantial number of the post 1985 cases involving large settlements and fees granted as a percentage of the total settlement, but the chart is not comprehensive. We feel that the selection of cases in the chart are representative of the range of cases relevant to the District Court’s analysis of Kirby's fee application in this case. .The district court originally awarded attorneys' fees in this case in 1997, see In re Prudential, 962 F.Supp. 572 (D.N.J.1997), which decision was vacated and remanded by the Third Circuit. See In re Prudential, 148 F.3d 283 (3d Cir.1998). Those decisions are discussed infra. . With respect to gathering evidence, the court asserted: Godfrey and others had to create their own databases, compiling posted prices, NY-MEX prices, transportation costs, grade and weight differentials and so forth simply to determine whether or not a cause of action might exist. And, in order to first articulate their claims, class counsel had to hire experts to research their allegation that the NYMEX trading center method is a reasonable way of determining market price at the lease. In re Lease Oil, 186 F.R.D. at 445. . We should note that the award actually amounted to more than 5.7% of the total recovery. The fund had a value of $341.5 million," }, { "docid": "6681028", "title": "", "text": "use of multipliers of between 2.00 and 1.70 for certain partners, and multipliers of between 1.5 and 1.00 for certain associates. They also seek reimbursement of $13,726.74 in costs and expenses. Both of these amounts are to be deducted from the settlement fund. Courts have found disfavor with lodestar-multipliers, and favor with the percentage method, in both “common fund cases” and statutory fee-shifting cases. See, e.g., City of Burlington v. Dague, — U.S. —, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (lodestar amount in statutory fee shifting cases not to be enhanced to reflect the risk of contingency); Pennsylvania, et al. v. Delaware Valley Citizens’ Council for Clean Air, et al., 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (it is unnecessary to enhance the lodestar figure because it contains the relevant factors constituting a “reasonable” attorney’s fee); Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 1550 n. 16, 79 L.Ed.2d 891 (1984) (under the “common fund doctrine,” a reasonable fee is based on a percentage of the fund bestowed on the class); In re RJR Nabisco, No. 88 Civ. 7905, 1992 WL 210138 (S.D.N.Y. August 24, 1992) (courts increasingly use the percentage basis over the lodestar approach in awarding attorney’s fees). Indeed, in In re Union Carbide Corp. Consumer Prods. Business Sec. Litig., 724 F.Supp. 160 (S.D.N.Y.1989), although Chief Judge Brieant applied a lodestar-multiplier, the court criticized that method. The court stated that the lodestar-multiplier method is “not an ideal way to fix fees” because it wastes court time in determining the multiplier, lacks predictability, and provides little incentive to arrive at an early settlement. Id. at 166. This Court declines to apply the lodestar method, and instead favors the use of the straight percentage of recovery method. Courts in this circuit grant awards of 15% to 50% of the entire settlement fund in class actions. In re Warner Communications Sec. Litig., 618 F.Supp. 735 (S.D.N.Y.1985), aff'd, 798 F.2d 35 (2d Cir.1986), stated an amount of 20%-50%, and gave an amount totalling less than 25%. In re Union Carbide Sec. Litig., 724 F.Supp." }, { "docid": "5748832", "title": "", "text": "motivation to counsel to have them understand that where they prevail, they have a sure expectation that fees will be fairly determined in the circumstances of the case and a certainty that they will be paid. Enhancement for contingency in common-fund cases will also have the effect of compensating (on the basis of averages) counsel for services in cases where they have not prevailed and will encourage the bringing of weak and unfounded class action suits. The prospect of guaranteed fair compensation of fees, and of payment of such fees where counsel prevail, is the proper means of encouraging the availability of counsel. The Court.noted in Dague that a fair “lodestar” fee generally exceeds a purely contingency-based fee. Dague, 505 U.S. at -, 112 S.Ct. at 2643, 120 L.Ed.2d at 458-59. Contingency enhancement will, therefore, result in double-counting in the determination of fees. This Court’s continuing conviction, that the reasons set forth in Dague for not awarding contingency fee enhancement in that case apply with equal force in a common-fund case, has recently been recognized in this circuit: Although Dague’s holding technically only applies to contingency enhancements involving fee-shifting statutes, the Court’s reasoning applies with equal force to multipliers in the context of equitable fund cases. Rather than relying on statutory interpretation to reach its holding, the Dague Court examined the policy reasons behind contingency enhancements and concluded that these reasons did not support their use. Courts in equitable fund cases have employed the same reasons, now discredited by the Dague Court, in deciding whether to add contingency multipliers. See, e.g., In re “Agent Orange” Product Liability Litig., 611 F.Supp. 1296, 1310-14 (E.D.N.Y.1985) (considerations in determining whether to add a multiplier include the risk of failure, the complexity of the issues, and the demonstrated skill of the attorneys), affd in part, rev’d in part on other grounds, 818 F.2d 226 (2d Cir.1987); Purdy v. Security Savings & Loan Ass’n, 727 F.Supp. 1266, 1276 (E.D.Wis.1989) (factors included difficulty of plaintiffs case, considering the legal and factual complexity and probability of defendant’s liability; and risk of loss, considering the potential for uncompensated" }, { "docid": "20900924", "title": "", "text": "(30%). In re MRRM, P.A., 404 F.3d 863 (4th Cir.2005) (fee request of 28.75% of $ 70 million settlement awarded as class counsel fees); In re U.S. Bancorp Litig., 291 F.3d 1035 (8th Cir.2002) (attorney’s fees of 36% affirmed); Waters v. Int’l Precious Metals Corp., 190 F.3d 1291 (11th Cir.1999) (award of $ 13.3 million in attorney’s fees from $ 40 million settlement fund-33-1/3% of total recovery); In re Thirteen Appeals Arising Out of the San Man Dupont Plaza Hotel Fire Litig., 56 F.3d 295 (1st Cir.1995) (attorney’s fees award of approximately 31% of settlement affirmed); In re Combustion, Inc., 968 F.Supp. 1116, 1133-1141 (W.D.La.1997) (attorney’s fees of 36% of $ 127 million settlement); Vizcaino v. Microsoft, 290 F.3d 1043, 1047 (9th Cir.2002) (class action; the rule of thumb is that an award of fees of 25% to 30% is generally appropriate); In re Airline Ticket Comm’n Antitrust Litig., 953 F.Supp. 280, 285-86 (D.Minn.1997) (awarding one-third attorney’s fees, from $ 86 million settlement). 41. A comparison of the amount sought to the time and work expended also reveals that the request falls well below the low end of the range produced by the lodestar analysis below, with no enhancement for risk. Based upon fee awards in other class cases cited herein, the fee request is fair and reasonable. 42. Based on the foregoing, the court concludes that each of the Barber factors supports the reasonableness of the requested fee award. D. Lodestar Cross-check. 43. A court may choose to “cross-check” the results of a percentage-fee award against the attorney’s “lodestar.” See, e.g., The Kay Co. v. Equitable Prod. Co., 749 F.Supp.2d 455, 463-64 (S.D.W.Va.2010) (“I will also apply the lodestar cross-check as an element of objectivity in my analysis.”). The “lodestar” is derived by multiplying the attorney and professional hours devoted to a case by the timekeepers’ individual billing rates. A risk multiplier is then applied. The lower the multiplier, the more reasonable the fees sought, i.e., a multiplier of 2 is preferable to a multiplier of 4, and so forth. 44. The “actual rate that applicant’s counsel can command" }, { "docid": "22271849", "title": "", "text": "be reasonable under the circumstances.” Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990) (emphasis added). Because a reasonable fee award is the hallmark of common fund cases, and because arbitrary, and thus unreasonable, fee awards are to be avoided, neither method should be applied in a formulaic or mechanical fashion. . The D.C. Circuit also requires the use of the percentage method in common fund cases. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C.Cir.1993). However, other circuits leave it to the discretion of the district court to choose between the lodestar and percentage methods in common fund cases. See, e.g., Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516 (6th Cir.1993); Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir.1992); Harman v. Lyphomed, Inc., 945 F.2d 969, 975 (7th Cir.1991); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir.1988); In re \"Agent Orange\" Prod.Liab.Litig., 818 F.2d 226, 232 (2d Cir.1987). . The attorneys in Graulty had a contingent fee arrangement with some of the plaintiffs (the estates receiving 30 percent of the common fund), but had no fee arrangement with the plaintiffs receiving the remaining 70 percent of the fund. 886 F.2d at 269-70. Because the attorneys’ efforts benefitted both groups of plaintiffs simultaneously, it would have been nearly impossible to allot the hours spent working on behalf of each group. Id. at 272. . While the task of calculating the lodestar in this case was immense, it plainly did not tax the district court beyond its limits. In fact, the district court provided an extraordinarily comprehensive and detailed explanation of its lodestar award in its exhaustive 167-page order. See WPPSS II, 779 F.Supp. at 1063-1230. . On reconsideration, Class Counsel stated that their fee calculation under the \"alternative” percentage method was intended to \"test the Kerr [lodestar/multiplier] analysis and to confirm the reasonableness of the proposed multipliers.” Reply Memorandum of Class Counsel in Support of Reconsideration on Attorneys’ Fee Order at 7. . Because Dague was decided in 1992, well after the district court's two 1990 attorneys' fee rulings, the district court had" }, { "docid": "18338539", "title": "", "text": "personal injury lawyer with mass tort experience who has practiced in the New Orleans area for 27 years. . Several of these attorneys have played prominent roles in some of the best known mass tort cases of the last decade in Louisiana and across the United States. Examples include the MGM Grand Hotel Fire Litigation, San Juan DuPont Plaza Fire Litigation, the Hyatt Hotel Skywalk Litigation, the Pan Am crash in Kenner, Louisiana, the Delta crash in Dallas, Texas, the Livingston, Louisiana train derailment, the New Orleans Tank Car Fire Litigation, and the Continental Grain Elevator Explosion. . In re Nineteen Appeals Arising Out of San Juan DuPont Plaza Hotel Fire, 982 F.2d 603 (1st Cir. 1992), reversed the district court's lodestar award of $36,000,000 from a $220,000,000 fund, due to procedural defects. . Examples of cases where multipliers from one to four were used are: In Corrugated Container Antitrust Litigation, 1983 WL 1872 (S.D.Tex. 1983) (awarding multipliers up to 4.0); Brewer v. Southern Union Co., 607 F.Supp. 1511 (D.Colo. 1984) (awarding multipliers from 2.0 to 4.0); In re MGM Grand Hotel Fire Litigation, 660 F.Supp. 522 (D.Nev.1987) (awarding multipliers from 1.0 to 2.95); In re Beverly Hills Fire Litigation, 639 F.Supp. 915 (E.D.Ky.1986) (awarding multipliers from 1.0 to 5.0); Squillacote v. United States, 626 F.Supp. 127 (E.D.Wis.1985) (awarding 3.0 multiplier); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (awarding a multiplier of 2.0); In re Agent Orange Product Liability Litigation MDL No. 381, 818 F.2d 145 (2nd Cir. 1987), cert. denied by Pinkney v. Dow Chemical Co., 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988) (awarding a multiplier of 1.5 and 1.75 where court used national hourly rate to arrive at lodestar, \"thus skew[ing] the normal lodestar analysis”). . The aggregate total sought by the PLC is a combination of $31,397,462.37 from the Settlement Corpus attorney fee reserves, plus $449,-333.39 of fees derived from individual settlements occurring prior to the class settlement. The Settlement Corpus and the funds received in settlement of individual class member's claims" }, { "docid": "22111435", "title": "", "text": "until after the case had been settled. After the settlement, more than 100 applications for attorneys’ fees and expenses were submitted to the district court. Hearings on these applications were held on September 26 and October 1, 1984. On June 18, 1985, Chief Judge Weinstein issued an amended order awarding a total of $10,767,443.63 in fees and expenses to 88 law firms and individual lawyers for their work on behalf of the class. In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1296, 1344-46 (E.D.N.Y.1985). The district court followed the so-called “lodestar” approach to attorneys’ fees awards, see City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974) (“Grinnell I”), and City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.1977) (“Grinnell II”), using national hourly rates of $150 for partners, $125 for law professors, and $100 for associates. The court increased some fee awards by a quality multiplier, ranging from 1.50 to 1.75, to reward those who exhibited “exceptional or extraordinary skill” in the litigation. 611 F.Supp. at 1328. The court declined, however, to apply an overall risk multiplier to the lodestar amount. Appeals have been taken from these rulings. As noted, the PMC agreement required a trebled return of funds advanced off the top of any fees awarded by the court. Some PMC members therefore stood to receive enormously greater fees than they were awarded by the court, while others stood to receive substantially less. For example, David J. Dean, who was to have served as lead trial counsel and was awarded $1,424,283 in fees by the district court, would receive only $542,310 under the fee-sharing agreement. In contrast, Newton Schwartz, who was awarded only $41,886 by the district court, would receive $513,-026 under the agreement. Chief Judge Weinstein denied a motion by Dean to set aside the fee-sharing agreement after concluding that the agreement had no adverse impact on the interests of the class. In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1452, 1458-62 (E.D.N.Y.1985). However, he ordered that “[i]n future cases, as soon as a fee-sharing arrangement is made its existence must be" }, { "docid": "6116827", "title": "", "text": "non-contingent hourly rates charged in antitrust and other complex litigation, ranging from approximately $165 an hour to $475 for non-contingent cases in which fees are paid currently and without risk. See, e.g., Roberts v. Texaco Inc., 979 F.Supp. 185, 194 fn. 13 (S.D.N.Y.1997). These rates necessarily reflect the reputation, experience, and successful records of petitioning counsel and their firms. See, e.g., In re Domestic Air Transportation Antitrust Litigation, 148 F.R.D. 297, 355 (N.D.Ga. 1993) (approving hourly rates of up to $500 per hour for partners in lodestar calculations). The 117,199.9 hours of attorney time and 12,428.8 hours of paralegal time invested by the 69 petitioning law firms are reasonable given the magnitude of the litigation as well as magnitude of the defense, which included three dozen of the nation’s biggest and best defense firms operating on a seemingly unlimited budget over a period of four years. The percentage fee award in this ease represents a multiplier of approximately 3.97 times Class Counsel’s lodestar of $36,191,751. A multiplier of 3.97 is not unreasonable in this type of case. Indeed, as noted by the Honorable Leonard B. Sand, “In recent years multipliers of between 3 and 4.5 have become common.” Rabin v. Concord Assets Group, Inc., [1991-92 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 96,471 (S.D.N.Y.1991) (applying a 4.4 multiplier), quoting O’Brien v. National Property Analysts, 88 Civ. 4153, Tr. p. 72 (S.D.N.Y. July 27, 1989). The fee award is well supported by precedent within this Circuit. See e.g., Roberts v. Texaco, 979 F.Supp. 185 (1997) (5.5 multiplier); In re RJR Nabisco, Inc. Securities Litigation, [1992 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 96,984 (S.D.N.Y.1992) (awarding a percentage-based fee representing 6 times lodestar). D. Expenses Class Counsel requests reimbursement for expenses totaling $4,413,485.18. Class Counsel has provided adequate accountings of litigation expenses which tie the purported expenses to a specified legal product. See F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1269 (2d Cir.1987) (“reducing award for expenses by 25% where records were inadequate to permit a determination of the nature or timing of the activities that" }, { "docid": "23108158", "title": "", "text": "839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980). To deny all consideration of the added burden and additional risks an attorney under a contingent fee agreement may have to bear does not strike us as “reasonable.” We disagree with the holding of the Seventh Circuit in McKinnon v. City of Berwyn, 750 F.2d 1383, that the risk of losing does not justify a multiplier. In McKinnon, the court held that a risk bonus was inappropriate because it compensates attorneys, indirectly but effectively, for bringing unsuccessful civil rights suits, even though the attorney’s fee statute is expressly limited to cases where the party seeking the fee prevails. Id. at 1392. According to the McKinnon court, the logic of a risk adjustment leads to a multiplier that compensates an attorney for the cases he loses as well as wins, i.e., a lawyer with a one out of fifty chance of winning would get a multiplier of fifty to compensate him for the forty-nine similar cases he lost. We think such an analysis fails to consider the variables that may contribute to a lawyer’s risk of loss as well as the relatively conservative multipliers that have been awarded by courts. Despite the McKinnon spectre of bonus multipliers amounting to fifty times the lodestar figure bringing huge windfalls, no multipliers approaching this have ever been awarded in any § 1988 petition, or in any other attorney fee award case. In fact, the cases in which multiples of two have been awarded are unusual, even in complex litigation. See 6 Class Action Reports 82 (1980). While multiples of 2, 3, 4, and 4.5 have occasionally been given, these multipliers occur primarily in protracted multidistrict antitrust and securities cases involving recoveries of ten million dollars or more. See General Public Utilities Securities Litigation, Fed.Sec.Rptr. (CCH) 99,-566, 97,233 (D.N.J.1983) (where application of federal securities laws to nuclear energy raised novel and substantially untested issues, 20-24 million dollars was recovered and case imposed substantial professional burdens, 3.45 multiplier justified); Valente v. Pepsi Co., Inc., Fed.Sec.Rptr. (CCH) 96, 921, 95,826-63 (D.Del.1979) (2.1 multiplier awarded where litigation lasted over six" }, { "docid": "22439263", "title": "", "text": "MINER, Circuit Judge: Our discussion of the background and procedural history of this litigation appears in Judge Winter’s lead opinion, 818 F.2d 145. The nine members of the Plaintiffs’ Management Committee (“PMC”) and various outside counsel appeal, on a number of grounds, the district court’s decision setting attorneys’ fees. On June 18, 1985, the district court issued an amended order, awarding over seven million dollars in fees and three million dollars in expenses to eighty-eight attorneys and law firms involved in the action. In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1296 (E.D.N.Y.1985) (“Agent Orange”). The nine members of the PMC, individually and as a group, challenge the district court’s use of a national hourly rate in calculating the fee awards under the lodestar formula set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974) (“Grinnell I”), and City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.1977) (“Grinnell II”), the level of the quality multipliers it set, and its failure to apply a risk multiplier to the fee awards and to credit certain hours and expenses. Four outside counsel challenge the district court’s findings as to the value of their work to the class and the decision to abrogate various contingency fee arrangements between counsel and certain class members. For the reasons set forth below, we affirm in part and reverse in part. I. BACKGROUND In May of 1984, on the eve of trial, a settlement was reached with the chemical company defendants, calling for the establishment of a $180 million dollar fund for the benefit of the class. By order dated June 11, 1984, the district court required fee petitions to be filed no later than August 31, 1984, and scheduled hearings on the petitions for the early fall. Notice of Proposed Settlement of Class Action, reprinted in In re “Agent Orange” Product Liability Litigation, 597 F.Supp. 740, 867 (E.D.N.Y.1984). Pursuant to this procedure, well over 100 attorneys and law firms filed petitions, claiming tens of thousands of hours of work performed for the benefit of the class. The fee petitions fell" }, { "docid": "23108159", "title": "", "text": "that may contribute to a lawyer’s risk of loss as well as the relatively conservative multipliers that have been awarded by courts. Despite the McKinnon spectre of bonus multipliers amounting to fifty times the lodestar figure bringing huge windfalls, no multipliers approaching this have ever been awarded in any § 1988 petition, or in any other attorney fee award case. In fact, the cases in which multiples of two have been awarded are unusual, even in complex litigation. See 6 Class Action Reports 82 (1980). While multiples of 2, 3, 4, and 4.5 have occasionally been given, these multipliers occur primarily in protracted multidistrict antitrust and securities cases involving recoveries of ten million dollars or more. See General Public Utilities Securities Litigation, Fed.Sec.Rptr. (CCH) 99,-566, 97,233 (D.N.J.1983) (where application of federal securities laws to nuclear energy raised novel and substantially untested issues, 20-24 million dollars was recovered and case imposed substantial professional burdens, 3.45 multiplier justified); Valente v. Pepsi Co., Inc., Fed.Sec.Rptr. (CCH) 96, 921, 95,826-63 (D.Del.1979) (2.1 multiplier awarded where litigation lasted over six years, counsel prevailed on two unsettled issues, high quality of representation, and magnitude of benefit impressive). In the area of civil rights litigation where upward adjustments are much more modest, a survey of the reported cases shows that a multiplier of two has been given only three times in the last five years. See Ruiz v. Estelle, 553 F.Supp. 567 (S.D.Texas 1982); Vecchione v. Wohlgemuth, 481 F.Supp. 776; Aumiller v. University of Delaware, 455 F.Supp. 676 (D.Del.1978), aff'd, 594 F.2d 854 (3d Cir.1979). A multiplier of more than two has not been used at all. Rather than compensating the lawyers for unsuccessful claims, we believe that adjustment of the lodestar figure, after examining the particular risks assumed by an attorney in a particular case, may be necessary in order to provide the “reasonable attorney fee” envisioned by Congress under § 1988. See Blum v. Stetson, 465 U.S. at ----, 104 S.Ct. at 1550 (Brennan, J., concurring); Hall v. Borough of Roselle, 747 F.2d at 843. Of course, it is the actual risks or burdens that" } ]

[ { "docid": "3062701", "title": "", "text": "declared to be sufficient.” Id. The methods described in 4(i) may be limited, however, if a treaty on service exists between the countries of the plaintiff and the defendant. See C. Wright & A. Miller, Federal Practice & Procedure § 1133 (1985 Supp.) at 258. The United States and Japan have entered into the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters (The “Hague Convention” or “Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638, reprinted in 28 U.S.C.A. Fed.R.Civ.P. 4 (West Supp.1985), which proves a mechanism by which a party who is authorized by the laws of his own country to serve process can do so in a way that is acceptable to the country in which he makes service, see DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir.), cert. denied, 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981). The Convention outlines several methods for serving judicial documents and permits signatory nations to object to any or all of them. Thus, if authorized to serve abroad under Rule 4(e), a party may serve a document using any Rule 4(i) method, as long as the country receiving service has not objected to it in the Hague Convention or otherwise. See id. at 288-89; D. Siegel, Supplementary Practice Commentary C434, 28 U.S.C.A. Fed.R.Civ.P. 4 (West Supp.1985), at 70-71. On May 31, 1984, this court signed an ex parte order under Rules 4(e) and (i) permitting plaintiff to give a copy of the summons and complaint to Wine of Japan for delivery to Konishi. It also allowed plaintiff to arrange for a Japanese attorney to send a second set of the papers to defendant through Japan’s postal service. The summons (but not the complaint) mailed to Konishi had been translated into Japanese. A receipt of service was signed by Konishi and returned to the Japanese attorney, who had the receipt translated intp English and then forwarded it to plaintiff’s attorney in New York. Konishi contends that because Wine of Japan was and is not the agent of Konishi, delivery of the summons" } ]

[ { "docid": "23083400", "title": "", "text": "this goal. Under Nuovo Pignone’s interpretation of article 10(a), the fact that a signatory could object to service by mail is unconvincing. There is no reason to think that signatories with inadequate mail services would voluntarily opt out of article 10(a). Finally, we note that other provisions of the Hague Convention describe more reliable methods of effecting service. Service of process through a central authority under articles 2 through 7 and service through diplomatic channels under articles 8 and 9 require that service be effected through official government channels. It is unlikely that the drafters would have put in place these methods of service requiring the direct participation of government officials, while simultaneously permitting the uncertainties of service by mail. We conclude that article 10(a) does not permit parties to effect service of process on foreign defendants by mail. On remand, Nuovo Pignone should be permitted a reasonable time to effect service properly. Jim Fox Enter., Inc. v. Air France, 664 F.2d 63, 65 (5th Cir. Dec.1981). For the reasons we have explained, the district court’s assertion of personal jurisdiction over Fagioli is AFFIRMED, and its determination that service of process by mail is permissible under the Hague Convention is REVERSED. This matter is REMANDED for further proceedings. . Federal Rule of Civil Procedure 4(k)(2) permits personal jurisdiction over foreign defendants for claims arising under federal law where the defendant has sufficient contacts with the nation as a whole, but insufficient contacts to satisfy the due process concerns of the long-arm statute of any particular state. World Tanker Carriers Corp. v. MV Ya Mawlaya, 99 F.3d 717, 720 (5th Cir.1996). In World Tanker, we held that rule 4(k)(2) is applicable to admiralty claims. Nevertheless, neither party nor the district court addressed the is sue of whether personal jurisdiction exists over Fagioli pursuant to rule 4(k)(2), so we will not discuss this possibility. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.2000). . For example, suppose that Fagioli had agreed to transport the reactor from Italy to Mexico, but because of bad weather, the STORMAN ASIA unexpectedly was forced" }, { "docid": "16663682", "title": "", "text": "the Hague Convention is set forth at its beginning: The States signatory to the present Convention, Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time, Desiring to improve the organization of mutual judicial assistance for that purpose by simplifying and expediting the procedure, Have resolved to conclude a Convention to this effect and have agreed upon the following provisions. Articles 2 through 6 provide for service through a central authority in each country. Article 8 provides for service through diplomatic or consular agents of the country of origin unless objected to by a contracting country. (Japan has not objected. 28 U.S.C.A., Fed.R.Civ.P. 4, app. at 97 (West Supp.1985).) Subparagraphs (b) and (c) of Article 10 provide for judicial officers, officials, other competent persons, or any person interested in a judicial proceeding to effect service through judicial officers, officials or other competent persons of the country of destination unless objected to by a contracting country. (As noted above, Japan has objected to both of these subparagraphs.) Article 11 provides that two or more contracting countries may agree on additional methods of service. “The treaty * * * provides a mechanism by which a plaintiff authorized to serve process under the laws of its country can effect service that will give appropriate notice to the party being served and will not be objectionable to the country in which that party is served.” DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir.1981). The provision at issue here, subparagraph (a) of Article 10, does not expressly allow “service” of judicial process by postal channels in signatory nations; it merely permits one to “send” judicial documents by mail to persons abroad. It is a “familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100" }, { "docid": "16663683", "title": "", "text": "above, Japan has objected to both of these subparagraphs.) Article 11 provides that two or more contracting countries may agree on additional methods of service. “The treaty * * * provides a mechanism by which a plaintiff authorized to serve process under the laws of its country can effect service that will give appropriate notice to the party being served and will not be objectionable to the country in which that party is served.” DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir.1981). The provision at issue here, subparagraph (a) of Article 10, does not expressly allow “service” of judicial process by postal channels in signatory nations; it merely permits one to “send” judicial documents by mail to persons abroad. It is a “familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In addition, where a legislative body “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). Finally, where a legislative body “uses terms that have accumulated meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that the [legislative body] means to incorporate the established meaning of these terms.” National Labor Relations Board v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981). The Hague Convention repeatedly refers to “service” of documents, and if the drafters of the Convention had meant for subparagraph (a) of Article 10 to provide an additional manner of service of judicial documents, they would have used the word “service.” To hold that subparagraph (a) permits direct mail" }, { "docid": "5684647", "title": "", "text": "service under the Hague Convention. The aim of the Hague Convention is to ensure that individuals receive notice of judicial/extrajudicial documents and to provide a simple and expeditious procedure. See Hague Convention, Preamble following Fed.R.Civ.P. 4. A number of courts, although not specifically-addressing Article 19, have concluded that service is proper under the Hague Convention so long as it is effected by a method to which the country has not objected. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir.1981) (“It [the Convention] provides that each signatory shall designate a Central Authority to process requests of service, but it also allows service to be effected without utilizing the Central Authority as long as the nation receiving service has not objected to the method.”. Thus the more liberal methods provided in the Federal Rules of Civil Procedure and state long-arm rules may be used as long as the nation receiving service has not objected to them); Lemme v. Wine of Japan Import, Inc., 631 F.Supp. 456, 464 (E.D.N.Y.1986) (finding that a party may serve process abroad under any method permitted by the Federal Rules as long as the country receiving has not objected to it in the Hague Convention or otherwise). Consequently, this Court concludes that Article 19 should be broadly construed so as to permit service by any means, subject to the Federal Rules of Civil Procedure, not proscribed by the foreign country. The second question that must be addressed is whether Spain expressly or impliedly prohibits service of process via delivery by a private individual. Both parties have submitted affidavits of Spanish attorneys attesting to the law of Spain. Gomez Lopez has also submitted translations of the pertinent laws. See Exhibits attached to Gomez Lopez’ Reply Memorandum in Support of Amended Motion to Quash Service and/or to Certify Lack of Service of Process, dated January 26, 1996. A review of the declarations and translations of the pertinent provisions of the civil code reveals that personal service by a private individual is not expressly authorized or proscribed. Spanish law does provide for delivery of service by a" }, { "docid": "5684646", "title": "", "text": "649 (1988) (“In light of the original purpose of article 19, courts should narrowly construe it and only allow the use of alternative service methods which foreign law specifically authorizes.”). Gomez Lopez argues that this Court should adopt the viewpoint that Article 19 only permits alternative methods of service that are provided for under the foreign country’s law. He points out that Spain, although authorizing service by delivery, does not permit such service to be effectuated by private individuals. Rather, Spanish law mandates that the deliverer of service be a certain judicial official. Accordingly, he requests that the service of process be quashed. Banco Latino advocates the interpretation of Article 19 which permits service by any method that is not prohibited implicitly or explicitly by the laws of the foreign country. Accordingly, Banco Latino points out that Spain does not expressly or impliedly prohibit private individuals from serving process arising out of foreign litigation on foreign nationals and requests that the Court find that personal delivery by a private individual is an acceptable mode of service under the Hague Convention. The aim of the Hague Convention is to ensure that individuals receive notice of judicial/extrajudicial documents and to provide a simple and expeditious procedure. See Hague Convention, Preamble following Fed.R.Civ.P. 4. A number of courts, although not specifically-addressing Article 19, have concluded that service is proper under the Hague Convention so long as it is effected by a method to which the country has not objected. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir.1981) (“It [the Convention] provides that each signatory shall designate a Central Authority to process requests of service, but it also allows service to be effected without utilizing the Central Authority as long as the nation receiving service has not objected to the method.”. Thus the more liberal methods provided in the Federal Rules of Civil Procedure and state long-arm rules may be used as long as the nation receiving service has not objected to them); Lemme v. Wine of Japan Import, Inc., 631 F.Supp. 456, 464 (E.D.N.Y.1986) (finding that a party may" }, { "docid": "17069685", "title": "", "text": "However in all of the cases cited by Prewitt, the courts were careful to determine that service of process was in substantial compliance with the formal requirements of the Federal Rules; actual notice alone was not enough to allow the court personal jurisdiction over the defendant. See Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897 (11th Cir.1990) (holding that service of process was in substantial compliance with Fed. R.Civ.P. 4(b) even though it did not include a return date for the responsive pleading); Direct Mail Specialists, Inc. v. Eclat Computerized Tech. Inc., 840 F.2d 685 (9th Cir.1988) (finding that a corporation's receptionist had sufficient authority to receive service of process as a \"managing or general agent” under Fed.R.Civ.P. 4(d)(3) and noting that the president of the company received actual notice of the summons and complaint a day later); United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir.1984) (holding that service was effective under Fed. R.Civ.P. 4(b) even though the summons had a typographical error stating that the defendant had 10 rather than 20 days to answer the complaint); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp.2d 1273 (S.D.Fla.1999) (finding that personal delivery of service of process on the defendant in Spain was sufficient because it was authorized under Spanish law as required by the Hague Convention and Fed.R.Civ.P. 4(f)(1) and the defendant had actual notice even though he only received a copy of the summons and not the complaint because he departed hastily). . “Personal jurisdiction is a composite notion of two separate ideas: amenability to jurisdiction, or predicate, and notice to the defendant through valid service of process.” DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983). . Expert Dec! of Dr. Wolfgang Hahnkam-per, Dist. Ct. Doc. 56, Exh. 8 at 4. . The Austrian Administrative Court (\"Ver-waltungsgerichtshof”) has held that a breach of a rule in an international agreement on service of process was not a \"simple defect of service\" that could be cured by Section 7 of the Austrian Service Act. The court stated the rule that:" }, { "docid": "5684648", "title": "", "text": "serve process abroad under any method permitted by the Federal Rules as long as the country receiving has not objected to it in the Hague Convention or otherwise). Consequently, this Court concludes that Article 19 should be broadly construed so as to permit service by any means, subject to the Federal Rules of Civil Procedure, not proscribed by the foreign country. The second question that must be addressed is whether Spain expressly or impliedly prohibits service of process via delivery by a private individual. Both parties have submitted affidavits of Spanish attorneys attesting to the law of Spain. Gomez Lopez has also submitted translations of the pertinent laws. See Exhibits attached to Gomez Lopez’ Reply Memorandum in Support of Amended Motion to Quash Service and/or to Certify Lack of Service of Process, dated January 26, 1996. A review of the declarations and translations of the pertinent provisions of the civil code reveals that personal service by a private individual is not expressly authorized or proscribed. Spanish law does provide for delivery of service by a judicial official. Consequently, delivery of a notice or summons by a private individual would not have legal effect’ in Spain with respect to an action pending in the local courts. However, it is of great importance that the instant litigation is not pending in Spain and that Gomez Lopez is not a Spanish national. Spain does not prohibit service of a summons arising out of foreign litigation upon a foreign national via hand delivery by a private process server. Nor is there any indication that service of process by a private individual is contrary to any deeply rooted principles of Spanish law. Spain simply has a procedure whereby personal delivery is effectuated by a judicial official. Therefore, this Court concludes that the service in this case was not contrary to Spanish law and the service was sufficient under Federal Rule of Civil Procedure 4(f). Whether Failure to Serve the Complaint Renders the Service Insufficient. As discussed supra, Federal Rule of Civil Procedure 4(f)(2)(C)(i) explicitly provides that in instances where there is no applicable international agreement" }, { "docid": "2915480", "title": "", "text": "documents after service of process has been obtained by means of the central authority,” Bankston, 889 F.2d at 174, it would have been illogical for the drafters to include it in the midst of provisions addressing alternative methods of service such as Article 10(b) and 10(e). “The placement of one lone provision dealing with the mailing of nonservice documents in the midst of fifteen articles addressing service of process, would be inconsistent with the structure of the entire [Hague] Convention.” R. Griggs, 920 F.Supp. at 1105. “Because the [Hague] Convention as a whole does not purport to address aspects of litigation other than service of process, Article 10(a) would be anomalous if it related to a subject other than service.” Id.; see also EOI, 172 F.R.D. at 137 (citations omitted) (“Article 10(a) would be out of place in Article 10, and in the entire [Hague] Convention, if it did not relate to ‘sending’ judicial documents for the purpose of ‘serving process.’ ”); Borschow Hosp. & Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472, 480 (D.P.R.1992) (“It is beyond peradventure that the sole aim of the [Hague] Convention is to regulate service of process on non-resident foreign defendants.’’). Defendants Opos and Roussel-France argue that this Court should find that France and Italy would object to service by mail because these nations do not allow service in domestic actions to be effected by mail. However, a signatory state’s internal law is not relevant to Article 10(a). As stated by the Appellate Division: We are called upon to construe the [Hague] Convention and as to that the meaning of Article 10(a) must be the same with respect to all the signatory nations. Their internal laws as to mail service may be, and undoubtedly are, diverse. The meaning of this international treaty must be uniform.' Gapanovich, 255 N.J.Super. at 615, 605 A.2d 1120. Furthermore, numerous courts have held that service by mail is valid in France and Italy. See R. Griggs, 920 F.Supp. at 1103, 1107-08 (Italy); Robins v. Max Mara. U.S.A., Inc., 923 F.Supp. 460, 469 (S.D.N.Y.1996) (Italy); G.A. Modefine, S.A. v." }, { "docid": "5684639", "title": "", "text": "absence of that evidence is predicated on bad faith. Bashir v. Amtrak, 119 F.3d 929 (11th Cir.1997). “Mere negligence in losing or destroying the records is not enough for an adverse inference, as it does not sustain an inference of consciousness of a weak case.” Id. Pinkerton had possession of the investigative file for approximately two years after Gomez Lopez was allegedly served. Sometime during the two years, a fee dispute arose between Pinkerton and Banco Latino’s former counsel. Subsequent to the dispute, Batten and/or Pinkerton had no contact with Banco Latino or its attorneys and the file was disposed of pursuant to standard company procedure. Clearly, Pinkerton’s destruction of the file was not premised on bad faith. Therefore, the request for the imposition of sanctions upon Banco Latino is denied. Motions to Quash or Certify Lack of Service of Process Whether Gomez Lopez was Served. The principle purpose of the service of process rule is to give the defendant notice that an action has been initiated. E.g. Nichols v. Surgitool, Inc., 419 F.Supp. 58 (W.D.N.Y.1976); Oklahoma Radio Assoc. v. FDIC, 969 F.2d 940 (10th Cir.1992). Due process requires that the method of service employed be reasonably calculated to give actual notice and to afford an adequate opportunity to be heard. Avianca Inc. v. Corriea, 705 F.Supp. 666 (D.D.C.1989). A plaintiff has the burden of proving proper service of process. Aetna Business Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th Cir.1981). In accordance with the above factual findings, the Court concludes that Banco Latino has established that Gomez Lopez was the individual who was handed the summons in this action in front of 4 Calle Columela in Madrid, Spain on November 21, 1995. Whether Service was Sufficient. Gomez Lopez maintains that if the Court finds that he was served, the service must be quashed. Gomez Lopez relies upon two grounds in support of his motion. He contends that the method of service was invalid under Federal Rule of Civil Procedure 4 and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil" }, { "docid": "5684645", "title": "", "text": "Commentaries § C4-24 at 64, following 28 U.S.C.A. Rules of Civil Procedure, Rule 4 (West Supp.1998). See also Committee on Federal Courts of the New York State Bar Ass’n, Service of Process Abroad: A Nuts and Bolt Guide, 122 F.R.D. 63 (1989) (“although compliance with the Convention is ‘mandatory’, that compliance encompasses not only methods of service that the Convention or the internal law of the foreign state expressly permit but also those methods that neither the Convention nor the internal law of the foreign state prohibit.”). The other view espoused by commentators is that Article 19 only permits alternative methods of service which are specifically authorized by the foreign country. See G. Brian Raley, A Comparative Analysis: Notice Requirements in Germany, Japan, Spain, The United Kingdom and The United States, 10 ARIZ.J. INT’L & COMP.L. 301, 307 (1993). (stating that contracting states generally construe Article 19 narrowly, thus permitting service only by means specifically enumerated in the receiving country’s laws.). Gary A. Magnarini, Service of Process Abroad Under the Hague Convention, 71 MARQ. L.REV. 649 (1988) (“In light of the original purpose of article 19, courts should narrowly construe it and only allow the use of alternative service methods which foreign law specifically authorizes.”). Gomez Lopez argues that this Court should adopt the viewpoint that Article 19 only permits alternative methods of service that are provided for under the foreign country’s law. He points out that Spain, although authorizing service by delivery, does not permit such service to be effectuated by private individuals. Rather, Spanish law mandates that the deliverer of service be a certain judicial official. Accordingly, he requests that the service of process be quashed. Banco Latino advocates the interpretation of Article 19 which permits service by any method that is not prohibited implicitly or explicitly by the laws of the foreign country. Accordingly, Banco Latino points out that Spain does not expressly or impliedly prohibit private individuals from serving process arising out of foreign litigation on foreign nationals and requests that the Court find that personal delivery by a private individual is an acceptable mode of" }, { "docid": "5684640", "title": "", "text": "(W.D.N.Y.1976); Oklahoma Radio Assoc. v. FDIC, 969 F.2d 940 (10th Cir.1992). Due process requires that the method of service employed be reasonably calculated to give actual notice and to afford an adequate opportunity to be heard. Avianca Inc. v. Corriea, 705 F.Supp. 666 (D.D.C.1989). A plaintiff has the burden of proving proper service of process. Aetna Business Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th Cir.1981). In accordance with the above factual findings, the Court concludes that Banco Latino has established that Gomez Lopez was the individual who was handed the summons in this action in front of 4 Calle Columela in Madrid, Spain on November 21, 1995. Whether Service was Sufficient. Gomez Lopez maintains that if the Court finds that he was served, the service must be quashed. Gomez Lopez relies upon two grounds in support of his motion. He contends that the method of service was invalid under Federal Rule of Civil Procedure 4 and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. (“Hague Convention”). See Hague Convention following Fed.R.Civ.P. 4. He further argues, in the alternative, that service was improper because he only-received the summons and was not handed the Complaint. Whether the Method of Service was Valid. Federal Rule of Civil Procedure 4(f) sets forth the methods for service upon individuals outside the United States. The Rule permits service via “internationally agreed means reasonably calculated to give notice, such as those authorized by. the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Fed.R.Civ.P. 4(f)(1). Section (f) also allows other means of service reasonably calculated to give notice in instances where there is no internationally agreed means of service or the applicable international agreement allows alternative methods of service. Fed.R.Civ.P. 4(f)(2). One of the “other means of service” is delivery of the summons and complaint to the individual personally. Id. at 4(f)(2)(C)(i). This alternative method may only be utilized if it is not contrary to the law of the foreign country. Id. Spain is a signatory to the Hague Convention. See" }, { "docid": "5684643", "title": "", "text": "view is set forth in the Supplementary Practice Commentaries immediately following Fed.R.Civ.P. 4 in the United States Code Annotated Pocket Part for 1998. The commentary provides: The Convention is not, as has occasionally been supposed, automatically preemptive of all methods that may be used for service abroad. As long as the nation concerned has not, in its ratification or in any other part of its law, imposed any limits on particular methods, or made an unequivocal statement that only specifically listed methods may be used, other methods, like those set forth in paragraph (2) of Rule 4(f) may be resorted to, as the opening words of paragraph (2) recites. As the Third Circuit ob served in DeJames v. Magnificence Carriers, Inc., 654 F.2d 280(CA3), cert. denied 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981), Rule 4’s service methods “may be used as long as the nation receiving service has not objected to them.” In this respect Article 19 of the Convention is relevant. It says that if the internal law of the nation concerned “permits methods of transmission, other than those provided for [in the Convention],” the Convention doesn’t affect them. We should be able to read the word “permits” in Article 19 to mean “does not prohibit.” In order to use one of the methods Rule 4(f) authorizes in paragraph (2), for example, one should not have to show that the method has a precise counterpart (and just how precise?) in the foreign nation’s internal law. It should suffice that there is nothing in the foreign law, either explicitly or by compelling implication, to suggest that the method violates some deep-rooted policy of the nation involved. In this respect, we can draw on a well known principle often met in conflict of laws and having perhaps its most celebrated articulation in Judge Cardozo’s opinion in Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198 (1918): that a state’s public policy is not deemed to be violated merely because a foreign law seeking local implementation has no precise cognate in local law. Donald Siegle, Supplemental Practice" }, { "docid": "17069686", "title": "", "text": "defendant had 10 rather than 20 days to answer the complaint); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp.2d 1273 (S.D.Fla.1999) (finding that personal delivery of service of process on the defendant in Spain was sufficient because it was authorized under Spanish law as required by the Hague Convention and Fed.R.Civ.P. 4(f)(1) and the defendant had actual notice even though he only received a copy of the summons and not the complaint because he departed hastily). . “Personal jurisdiction is a composite notion of two separate ideas: amenability to jurisdiction, or predicate, and notice to the defendant through valid service of process.” DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983). . Expert Dec! of Dr. Wolfgang Hahnkam-per, Dist. Ct. Doc. 56, Exh. 8 at 4. . The Austrian Administrative Court (\"Ver-waltungsgerichtshof”) has held that a breach of a rule in an international agreement on service of process was not a \"simple defect of service\" that could be cured by Section 7 of the Austrian Service Act. The court stated the rule that: [Sjimple consideration of the generally acknowledged rules of public law, which apply according to Art. 9(1) B-VG [Federal Constitutional Act] as constituents of Federal law, and which include the principle that contracts are to be performed in good faith ... prohibits § 7 of the Service Act from being afforded the content that it should also reform breaches of explicit prohibitions on service contained in international agreements.... Verwaltungsgerichtshof [VwGH] Beschlufi, December 18, 1997, No. 97/11/0274 (Aus.). . Prewitt similarly argues that because OPEC failed to immediately reject the pleadings sent to it by international registered mail, return them, or lodge diplomatic protests with the United States, its actual receipt of the pleadings constituted constructive consent or waiver of the protection under Article 5(2) of the Headquarters Agreement that OPEC may only be served where it has expressly consented to service of process. Br. of Appellant at 31 n.9. We reject this argument because Article 5(2) must be read together with Article 9 of the Headquarters Agreement, which provides that \"OPEC ... shall enjoy immunity from" }, { "docid": "2915478", "title": "", "text": "the drafting history of the [Hague] Convention and reached the “inescapable” conclusion that Article 10(a) applies to service of process. See Ackermann, 788 F.2d at 839 (citing 1 B. Ristau, International Judicial Assistance (Civil and Commercial) §§ 4-10, 132, §§ 4—28, 165-67 (1984)). In the 1995 revision to his treatise, Mr. Ristau states that: Article 10(a) provides that, unless a contracting state has by its declaration expressly prohibited it, service of foreign judicial documents may be effected within its territory by mail ... The negotiating history of Article 10 ... indicates that “sending” of judicial documents by mail was intended to include service of process. 1 B. Ristau, International Judicial Assistance (Civil and Commercial) § 4-3-5(2), 148-49 (1995). In 1989, the signatory States met for a Second Special Commission. See The Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Evidence Convention, 28 I.L.M. 1556, 1561 (Apr.1989) (“Second Special Commission”). The Second Special Commission rejected the Bankston decision and wrote: It was pointed out that the postal channel for service constitutes a method which is quite separate from service via the Central Authorities or between judicial officers. Article 10(a) in effect offered a reservation to Contracting States to consider that service by mail was an infringement of their sovereignty. Thus, theoretical doubts about the legal nature of the procedure were unjustified. Id. at 1561. The Courts which have rejected the Bank-ston interpretation rejecting service by mail in favor of the Ackermann interpretation of Article 10(a) have observed that the [Hague] Convention’s drafters’ use of the word “send” instead of “service” is not unique to Article 10(a). See EOI, 172 F.R.D. at 138-39. For example, Article 21 uses the phrase “methods of transmission” as a synonym for service. Id. at 138. Courts have concluded that “it is reasonable that the drafters simply varied the language in [Article 10(a) ] when discussing service.” Id.; see also R. Griggs, 920 F.Supp. at 1105. Furthermore, if Article 10(a) did not apply to service of process, but “merely provides a method for sending subsequent" }, { "docid": "5684649", "title": "", "text": "judicial official. Consequently, delivery of a notice or summons by a private individual would not have legal effect’ in Spain with respect to an action pending in the local courts. However, it is of great importance that the instant litigation is not pending in Spain and that Gomez Lopez is not a Spanish national. Spain does not prohibit service of a summons arising out of foreign litigation upon a foreign national via hand delivery by a private process server. Nor is there any indication that service of process by a private individual is contrary to any deeply rooted principles of Spanish law. Spain simply has a procedure whereby personal delivery is effectuated by a judicial official. Therefore, this Court concludes that the service in this case was not contrary to Spanish law and the service was sufficient under Federal Rule of Civil Procedure 4(f). Whether Failure to Serve the Complaint Renders the Service Insufficient. As discussed supra, Federal Rule of Civil Procedure 4(f)(2)(C)(i) explicitly provides that in instances where there is no applicable international agreement or the international agreement allows alternative means of service, a permissible method of service is delivery to the individual personally of a copy of the summons and the complaint. Gomez Lopez maintains that the service was insufficient because he did not receive the Complaint. Banco Latino argues that service was nonetheless valid because Batten’s failure to hand over the Complaint was a direct result of Gomez Lopez’ actions. It is well-established that once a defendant has actual notice of the pen-dency of an action, the requirements of Fed.R.Civ.P. 4 are to be liberally construed. Nichols, 419 F.Supp. 58. See also Concepcion v. VEB Backereimaschenbau Halle, 120 F.R.D. 482 (D.N.J.1988) (“While there must be substantial compliance with the rules of service of process they are to be liberally construed where a defendant has sufficient notice of a complaint.”). Notice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction where a party is evading service of process. Avianca, Inc. v. Corriea, 705 F.Supp. 666 (D.D.C.1989). See also Wood v. Weenig, 736 P.2d" }, { "docid": "797633", "title": "", "text": "states, Honda R & D is a Japanese corporation, separate and distinct from the other defendants. It has never applied for or in any way sought or received authorization to do business in Missouri, nor has it manufactured any product that has entered Missouri. It has never solicited business here. Prost does not dispute any of this. Rather than engage in an extended opinion, the Court refers the parties to the excellent opinion of Judge Snyder of the Missouri Court of Appeals, Eastern District, in State ex rel. Honda Research and Development Co., Ltd. v. Adolf, 718 S.W.2d 550 (Mo.App.1986). This Court is also mindful of Judge Carl Gaertner’s concurring opinion and it will not hesitate to take proper action if it believes this motion to dismiss is, in reality, a ploy to frustrate discovery. Next is the motion to dismiss submitted by defendant Honda. Honda argues that Prost, in attempting to serve process upon Honda by registered mail, failed to comply with the terms of the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361 (1969) (hereinafter the Hague Convention). It is undisputed that the Hague Convention governs service of process over defendant Honda here. DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288-289 (3rd Cir.1981). Japan, as a signatory to the Hague Convention, has agreed to allow service of process via the different methods authorized in the treaty. According to Article 2 of the Hague Convention, each country shall designate a Central Authority which will undertake to receive requests for service. Hague Convention, supra, at 104. For Japan, this is the Ministry of Foreign Affairs. Id. at 113. Articles 3 through 6 discuss the procedure for using the Central Authority. Id. at 104-105. Additionally, Article 8 allows service by way of diplomatic channels, Id. at 105; Article 9 allows the forwarding of documents for the purpose of service through other designated authorities, Id.; and Article 19 allows service by any method of service permitted by the internal law of the country in which service is made. Id. at 107. See" }, { "docid": "797634", "title": "", "text": "Documents in Civil or Commercial Matters, 20 U.S.T. 361 (1969) (hereinafter the Hague Convention). It is undisputed that the Hague Convention governs service of process over defendant Honda here. DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288-289 (3rd Cir.1981). Japan, as a signatory to the Hague Convention, has agreed to allow service of process via the different methods authorized in the treaty. According to Article 2 of the Hague Convention, each country shall designate a Central Authority which will undertake to receive requests for service. Hague Convention, supra, at 104. For Japan, this is the Ministry of Foreign Affairs. Id. at 113. Articles 3 through 6 discuss the procedure for using the Central Authority. Id. at 104-105. Additionally, Article 8 allows service by way of diplomatic channels, Id. at 105; Article 9 allows the forwarding of documents for the purpose of service through other designated authorities, Id.; and Article 19 allows service by any method of service permitted by the internal law of the country in which service is made. Id. at 107. See Kadota v. Hosogai, 125 Ariz. 131, 608 P.2d 68, 72 (App.1980). The crucial article for this discussion is Article 10. Japan has objected to Articles 10(b) and 10(c). Hague Convention, supra, at 114. The remainder of Article 10 states: “Provided the State of destination does not object, the present Convention shall not not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Id. at 105. Some federal courts have held this to allow service of process by registered mail. See Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Supp. 1082, 1085-86 (E.D.Va.1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.D.C.1984). The Weight court found persuasive a handbook published by the Hague Conference on Private International Law, which stated that Japan had not declared its objection to service through postal channels. Weight, supra, at 1085. More recent opinions believe that service by registered mail is improper. In Mommsen v. Toro Co., 108 F.R.D. 444 (S.D.Iowa 1985), the Court noted that Article 10(a) “does not expressly allow ‘service’" }, { "docid": "5684644", "title": "", "text": "concerned “permits methods of transmission, other than those provided for [in the Convention],” the Convention doesn’t affect them. We should be able to read the word “permits” in Article 19 to mean “does not prohibit.” In order to use one of the methods Rule 4(f) authorizes in paragraph (2), for example, one should not have to show that the method has a precise counterpart (and just how precise?) in the foreign nation’s internal law. It should suffice that there is nothing in the foreign law, either explicitly or by compelling implication, to suggest that the method violates some deep-rooted policy of the nation involved. In this respect, we can draw on a well known principle often met in conflict of laws and having perhaps its most celebrated articulation in Judge Cardozo’s opinion in Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198 (1918): that a state’s public policy is not deemed to be violated merely because a foreign law seeking local implementation has no precise cognate in local law. Donald Siegle, Supplemental Practice Commentaries § C4-24 at 64, following 28 U.S.C.A. Rules of Civil Procedure, Rule 4 (West Supp.1998). See also Committee on Federal Courts of the New York State Bar Ass’n, Service of Process Abroad: A Nuts and Bolt Guide, 122 F.R.D. 63 (1989) (“although compliance with the Convention is ‘mandatory’, that compliance encompasses not only methods of service that the Convention or the internal law of the foreign state expressly permit but also those methods that neither the Convention nor the internal law of the foreign state prohibit.”). The other view espoused by commentators is that Article 19 only permits alternative methods of service which are specifically authorized by the foreign country. See G. Brian Raley, A Comparative Analysis: Notice Requirements in Germany, Japan, Spain, The United Kingdom and The United States, 10 ARIZ.J. INT’L & COMP.L. 301, 307 (1993). (stating that contracting states generally construe Article 19 narrowly, thus permitting service only by means specifically enumerated in the receiving country’s laws.). Gary A. Magnarini, Service of Process Abroad Under the Hague Convention, 71 MARQ. L.REV." }, { "docid": "5684641", "title": "", "text": "or Commercial Matters. (“Hague Convention”). See Hague Convention following Fed.R.Civ.P. 4. He further argues, in the alternative, that service was improper because he only-received the summons and was not handed the Complaint. Whether the Method of Service was Valid. Federal Rule of Civil Procedure 4(f) sets forth the methods for service upon individuals outside the United States. The Rule permits service via “internationally agreed means reasonably calculated to give notice, such as those authorized by. the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Fed.R.Civ.P. 4(f)(1). Section (f) also allows other means of service reasonably calculated to give notice in instances where there is no internationally agreed means of service or the applicable international agreement allows alternative methods of service. Fed.R.Civ.P. 4(f)(2). One of the “other means of service” is delivery of the summons and complaint to the individual personally. Id. at 4(f)(2)(C)(i). This alternative method may only be utilized if it is not contrary to the law of the foreign country. Id. Spain is a signatory to the Hague Convention. See Hague Convention following Fed.R.Civ.P. 4. It is undisputed that personal delivery is not a means of service explicitly set forth in the Convention. Therefore, the determination of whether the method utilized in this case complies with the Hague Convention and the Federal Rules of Civil Procedure requires a two part inquiry. The first component requires an examination of whether the Hague Convention permits alternative methods of service and in what instances. If the Hague Convention allows alternative methods of service of process, then it is necessary to examine whether the particular method used comports with Spanish law. The question of whether the Convention allows alternative means of service revolves around Article 19. That Article provides: To the extent that the internal law of a contracting state to the Convention allows methods of transmission, other than those provided for in the Articles, of documents coming from abroad, for service within its territory, the Convention shall not affect such provisions. See Hague Convention, Article 19 following Fed.R.Civ.P. 4. Article 19 is subject to two different interpretations. One" }, { "docid": "5684642", "title": "", "text": "Hague Convention following Fed.R.Civ.P. 4. It is undisputed that personal delivery is not a means of service explicitly set forth in the Convention. Therefore, the determination of whether the method utilized in this case complies with the Hague Convention and the Federal Rules of Civil Procedure requires a two part inquiry. The first component requires an examination of whether the Hague Convention permits alternative methods of service and in what instances. If the Hague Convention allows alternative methods of service of process, then it is necessary to examine whether the particular method used comports with Spanish law. The question of whether the Convention allows alternative means of service revolves around Article 19. That Article provides: To the extent that the internal law of a contracting state to the Convention allows methods of transmission, other than those provided for in the Articles, of documents coming from abroad, for service within its territory, the Convention shall not affect such provisions. See Hague Convention, Article 19 following Fed.R.Civ.P. 4. Article 19 is subject to two different interpretations. One view is set forth in the Supplementary Practice Commentaries immediately following Fed.R.Civ.P. 4 in the United States Code Annotated Pocket Part for 1998. The commentary provides: The Convention is not, as has occasionally been supposed, automatically preemptive of all methods that may be used for service abroad. As long as the nation concerned has not, in its ratification or in any other part of its law, imposed any limits on particular methods, or made an unequivocal statement that only specifically listed methods may be used, other methods, like those set forth in paragraph (2) of Rule 4(f) may be resorted to, as the opening words of paragraph (2) recites. As the Third Circuit ob served in DeJames v. Magnificence Carriers, Inc., 654 F.2d 280(CA3), cert. denied 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981), Rule 4’s service methods “may be used as long as the nation receiving service has not objected to them.” In this respect Article 19 of the Convention is relevant. It says that if the internal law of the nation" } ]

[ { "docid": "12851746", "title": "", "text": "accept “in the future,” for delivery to parents, any “propaganda” issued by the school, and to destroy it if accepted. I Plaintiffs contend that the expulsion order violated their First and Fourteenth Amendment freedoms. The same cases are cited by plaintiffs and defendants in support of their arguments on this contention. The authoritative decision, pertinent to the important issue before us, is Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Tinker is a high school “arm band” case, but its rule is admittedly dispositive of the case before us. The Tinker rule narrows the question before us to whether the writing of “Grass High” and its sale in school to sixty • students and faculty members could “reasonably have led [the Board] to forecast substantial disruption of or material interference with school activities * * * or intrusion] into the school affairs or the lives of others” Tinker v. Des Moines School District, 393 U.S. at 514, 89 S.Ct. at 740. (Emphasis added.) We hold that the district court erred in deciding that the complaint “on its face” disclosed a clear and present danger justifying defendants’ “forecast” of the harmful consequences referred to in the Tinker rule. Tinker announces the principles which underlie our holding: High school students are persons entitled to First and Fourteenth Amendment protections. States and school officials have “comprehensive authority” to prescribe and control conduct in the schools through reasonable rules consistent with fundamental constitutional safeguards. Where rules infringe upon freedom of expression, the school officials have the burden of showing justification. See also Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966); Blackwell v. Issaquena Co. Board of Education, 363 F.2d 749 (5th Cir. 1966); Soglin v. Kaufman, 418 F.2d 163 (7th Cir. Oct. 24, 1969); Breen v. Kahl, 419 F.2d 1034 (7th Cir. Dec. 3, 1969); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (M.D.Ala.1967); Jones v. State Board of Education, 279 F.Supp. 190 (M.D. Tenn.1968). There is no dispute here about the applicable principles or decisional rules. Plaintiffs’ freedom of expression was infringed" } ]

[ { "docid": "7955866", "title": "", "text": "assume the burden of showing that a “particular school measure was motivated by other than legitimate school concerns — for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.” . Eisner v. Stamford Board of Education (2d Cir. 1971) 440 F.2d 803, 806-807; Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031. A similar rule prevails where the printed material is obscene. Close v. Lederle (1st Cir. 1970) 424 F.2d 988, 990, cert, den., 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140; Baker v. Downey City Board of Education (D.C.Cal.1969) 307 F.Supp. 517, 526-527; but, cf., Keefe v. Geanakos (1st Cir. 1969) 418 F.2d 359; Vought v. Van Buren Public Schools (D.C.Mich.1969) 306 F.Supp. 1388, 1392. The American Civil Liberties Union, in its bulletin, Academic Freedom in the Secondary Schools (at 11-12) phrases the right of prior restraint, as applied to high school students, thus: “Neither the faculty advisors nor the principal should prohibit the publication or distribution of material except when such publication or distribution would clearly endanger the health or safety of the students, or clearly and imminently threaten to disrupt the educational process, or might be of a libelous nature. Such judgment, however, should never be exercised because of disapproval or disagreement with the article in question.” This statement is quoted in Abbott, The Student Press: Some First Impressions, 16 Wayne L.Rev. 1, 22 (1970). Cf., opinion of Justice Fortas in Tinker, where in summarizing his conclusions, he said: “ * * * the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.” (393 U.S. at p. 514, 89 S.Ct. at p. 740). As a matter of fact, the defect in the District Court’s decision in that case was in the judgment of the prevailing opinion that it “made no such finding”. . See, Goldstein, The Scope and Sources of School Board" }, { "docid": "3570919", "title": "", "text": "sufficient irreparable harm to the Wilsons to justify a preliminary injunction. A. Likelihood of Success of the Merits “In deciding whether to grant a preliminary injunction, ‘likelihood of success on the merits is most significant.’ ” Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir.1995) (quoting S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir.1992)). The Wilsons’ success on the merits will depend on what standard the District Court applies. The School District argues Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), should control. The Wilsons argue otherwise. First, the Wilsons argue all off-campus speech is protected and cannot be the subject of school discipline, even if the speech is directed at the school or specified students. Alternatively, they argue that if Tinker applies, the speech was not directed at the school and did not create a substantial disruption. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at 506, 89 S.Ct. 733. However, in the school environment, some speech is not protected by the First Amendment, and school officials may lawfully punish some forms of unprotected student speech. Under Tinker, “conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substan tial disorder or invasion of the rights of others is ... not immunized by the constitutional guarantee of freedom of speech.” 393 U.S. at 513, 89 S.Ct. 733. Thus, student speech that causes a substantial disruption is not protected. Based on the cases below and on the District Court’s finding that NorthPress was “targeted at” Lee’s Summit North, we believe Tinker is likely to apply. Further, because the District Court found the Wilsons’ posts caused a substantial disruption, the Wilsons are unlikely to succeed on the merits under Tinker. In D.J.M. v. Hannibal Public School District # 60, we" }, { "docid": "23599683", "title": "", "text": "censorship. Other courts have held unconstitutional similar restraints on student distribution of underground newspapers and political literature. In Riseman v. School Committee, 439 F.2d 148 (1st Cir. 1971), a rule directed against advertising and promoting on school grounds was used to deny permission to a student to distribute political literature. The First Circuit invalidated the rule as vague, overbroad and impermissible as a prior restraint. The court said the school might regulate the time, manner and place of distribution, but could not require advance approval of the content of the material. The Fourth Circuit in Quarterman v. Byrd, 453 F.2d 54 (1971), enjoined the enforcement of a rule which required prior permission from the principal before distributing any material. The court in Sullivan v. Houston Independent School District, 333 F.Supp. 1149 (S.D.Tex.1971), refused to permit the school to give even a one-day review to the principal; the school could not justify imposition of any prior restraint on distribution of underground newspapers. The district court in Eisner v. Stamford Board of Education, 314 F.Supp. 832 (D.Conn.1970), reached the same result in invalidating a rule which required prior approval. On appeal the Second Circuit affirmed the invalidation, but modified the lower court’s opinion so extensively as to obliterate it. 440 F.2d 803 (1971). The court allowed prior submission of publications if accompanied by elaborate procedural safeguards. We believe that the court erred in Eisner in interpreting Tinker to allow prior restraint of publication — long a constitutionally prohibited power — as a tool of school officials in “forecasting” substantial disruption of school activities. In proper context, Mr. Justice Fortas’ use of the word “forecast” in Tinker means a prediction by school officials that existing conduct, such as the wearing of arm bands — if allowed to continue — will probably interfere with school discipline. 393 U.S. at 514, 89 S.Ct. 733. Tinker in no way suggests that students may be required to announce their intentions of engaging in certain conduct beforehand so school authorities may decide whether to prohibit the conduct. Such a concept of prior restraint is even more offensive when" }, { "docid": "2130780", "title": "", "text": "387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661, and that the doctrine has been applied in reviewing both university, Soglin v. Kauffman, W. D.Wis.1968, 295 F.Supp. 978, aff’d 7 Cir. 1969, 418 F.2d 163, and high school sanctions, Sullivan v. Houston Independent School District, S.D.Tex.1969, 307 F.Supp. 1328. Analyzing each phrase separately, the plaintiffs have attempted to show that the language of the statute does nothing more than allow school administrators unfettered discretion in meting out suspensions. We disagree. In order to resolve the question of whether or not the plaintiffs were denied their constitutional rights it is important to weigh and contrast the gravity of those rights with the interest of the state in maintaining discipline in the educational system. It has alwas been within the province of school authorities to provide by regulation for the prohibition and punishment of acts calculated to undermine the school routine. Obviously, such authority is necessary and proper. Blackwell v. Issaquena County Board of Education, 5 Cir. 1966, 363 F.2d 749, 753. The Supreme Court has on several occasions “ * * * emphasized the need for affirming the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. In this regard it should be obvious that: * * * in measuring the appropriateness and reasonableness of school regulations against the constitutional protections of the First and Fourteenth Amendments the courts must give full credence to the role and purposes of the schools and of the tools with which it is expected that they deal with their problems, and careful recognition to the differences between what are reasonable restraints in the classroom and what are reasonable restraints on the street corner. [Emphasis added.] Clearly, the community * * * expects that the requirements of order, and of protection and implementation of the educational program of the school, will be met by limited enforcement means — the force of the school establishment itself" }, { "docid": "20637178", "title": "", "text": "falls into the third category and is governed by Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511-14, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Harper’s t-shirt was clearly not school sponsored, so the Hazelwood standard— highly deferential to school authorities— does not apply. Until recently, it was a closer question whether Harper’s t-shirt involved plainly offensive speech, which may be banned by the school under Fraser. See Scott v. School Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir.2003) (per curiam) (upholding ban on Confederate flag under both Tinker and Fraser ). But our recent opinion in Frederick v. Morse, 439 F.3d 1114 (9th Cir.2006), puts this issue to rest, explaining that “plainly offensive” under Fraser is determined by the language used, not the idea conveyed. See id. at 1119-21. Since there was nothing offensive about the language of Harper’s t-shirt, the school authorities here cannot rely on Fraser. If the school’s ban of the shirt is to be upheld, then, it must be because it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Tinker, 393 U.S. at 513, 89 S.Ct. 733. 1. School authorities may ban student speech based on the existence of “any facts which might reasonably [lead] school authorities to forecast substantial disruption.” Id. at 514, 89 S.Ct. 733. While we do not require school officials to be certain that disruption will occur, see LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir.2001), they must present “evidence that [the ban] is necessary to avoid material and substantial interference with schoolwork or discipline.” Tinker, 393 U.S. at 511, 89 S.Ct. 733 (emphasis added). The school authorities here have shown precious little to support an inference that Harper’s t-shirt would “materially disrupt] classwork.” One teacher, David LeMaster, said that several students in class were “off-task talking about [the] content of ‘Chase’s shirt’ when they should have been working.” LeMaster decl. at 2. Surely, however, it is not unusual in a high school classroom for students to be “off-task.” The scene á faire of high school students" }, { "docid": "21888950", "title": "", "text": "is no less protected by virtue of the fact that solicitation of contributions is an integral part thereof. See Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Assuming that plaintiffs’ activity was “speech” within the meaning of the First Amendment, school officials had the burden of showing governmental interests which might justify their interference with that “speech.” NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The Supreme Court has repeatedly affirmed that such an interest lies in the implementation of “the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 507, 89 S.Ct. at 737; see Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228, (1968). The exercise of such authority may not, however, abridge the free expression of students in the public high schools unless that expression “materially and substantially interfere [s] with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 509, 89 S.Ct. at 738. Though the skeletal evidentiary matter before the trial court disclosed minimal potential interference at most, the probability that plaintiffs’ over-breadth contention would prevail at trial is so slight that the denial of preliminary relief cannot be held to have constituted an abuse of discretion. Unlike the amorphous “regulations” in Sullivan v. Houston Independent School District, 307 F.Supp. 1328 (S.D.Tex.1969), the Board of Regents’ rule articulated its proscription in terms of those non-expressive features of student conduct which raise a sufficiently high probability of harm — i. e. the pressures upon students of multiple solicitations — to justify the Board’s interference with such communicative conduct. Pupils are on school premises in response to the statutory requirement that they attend school for the purpose of formal education. Where outside organizations or individuals espousing various causes seek to take advantage of the required assemblage of secondary school pupils, as a captive audience," }, { "docid": "13229042", "title": "", "text": "not plaintiff’s conduct at the faculty meeting on May 18, 1970 was a determinative reason for the defendants’ decision not to retain plaintiff as a probationary teacher, we must determine at the threshold whether plaintiff’s behavior at this meeting was within the scope of expression constitutionally protected from government sanction. It is established that a state-supported college cannot deny employment to a probationary teacher in retaliation for the teacher’s exercise of his constitutionally-protected freedom of expression. Perry v. Sindermann, supra at 597. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). The court in Tinker, however, recognized that the scope of these First Amendment rights must be analyzed in relation to the countervailing interest of upholding the authority of school officials and the orderly administration of the educational institution. 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Moore v. Winfield City Board of Education, 452 F.2d 726, 728 (5th Cir. 1971). The specific issue at this point is whether plaintiff’s conduct at the faculty meeting was within the constitutionally-protected realm of freedom of expression or whether plaintiff’s conduct was so disruptive of the orderly administration of the educational functions of the State University at Fresno as to place plaintiff’s conduct beyond traditionally-protected expression. The balance between the individual teacher’s First Amendment rights and the interests of the school administration in maintaining an intellectually open, honest and coherent educational environment is a delicate equilibrium. In cases where the teacher has involved or provoked student action in support of his own dissident views the courts have found that the teacher’s conduct was beyond the limits of his protected rights. Skehan v. Board of Trustees of Blooms-burg State College, 358 F.Supp. 430 (M. D.Pa.1973) (teacher’s refusal to follow administration’s directive regarding the schedule of classes is not" }, { "docid": "12907314", "title": "", "text": "public schools. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Many courts have recognized that a teacher’s First Amendment rights encompass the notion of “academic freedom” to exercise professional judgment in selecting topics and materials for use in the course of the educational process. See, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir.1985), rev’d in part on other grounds, — U.S. —, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir.1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir.1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir.1969); Dean v. Timpson Independent School District, 486 F.Supp. 302, 307 (E.D.Tex.1979). See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629 (1967) (discussing importance of academic freedom). Among the “special circumstances” which must be considered in defining the scope of First Amendment protection inside the classroom is the “inculcation of] fundamental values necessary to the maintenance of a democratic political system.” Bethel School District No. 403 v. Fraser, — U.S. —, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. 1589, 1594-95, 60 L.Ed.2d 49 (1979)). Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values, is truly the “work of the schools.” Fraser, 106 S.Ct. at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S.Ct. at 1594-95, and" }, { "docid": "14769355", "title": "", "text": "19, 1983, three Spectrum staff members filed this first amendment action seeking injunctive relief, money damages, and a declaration that their first amendment rights were violated. The district court denied injunctive relief, 596 F.Supp. 1422, and held that the students’ first amendment rights were not violated, 607 F.Supp. 1450. On appeal, appellants contend that the district court erred in 1) determining that Spectrum was not a public forum, 2) determining that the district’s censorship did not violate the students’ first amendment rights, 3) refusing to invalidate the district’s policies and regulations regarding student expression, and 4) denying them their right to a jury trial. DISCUSSION I. The starting point for any analysis of the first amendment rights of high school students is Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). There, the Court held a high school regulation prohibiting students from wearing black armbands in protest of the Vietnam War violated the first amendment. Tinker, 393 U.S. at 506, 89 S.Ct. at 736. The Court reasoned that secondary students do not “shed their constitutional rights to freedom of speech or expression at the school house gate.” Id. at 506, 89 S.Ct. at 736. Those rights are not absolute, however, and must be “applied in light of the special circumstances of the school environment.” Id. at 506, 89 S.Ct. at 736. Nevertheless, though the first amendment rights of students are not co-extensive with those of adults, student expression may be curtailed only when it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Id. at 513, 89 S.Ct. at 740; see Burnside v. Byars, 363 F.2d 744 (5th Cir.1966); Blackwell v. Issaquena, 363 F.2d 749 (5th Cir.1966). Here, the district court concluded that in the context of a high school newspaper case, the Tinker test applies only to papers which are public forums. A standard more deferential to the interests of school officials is applied where the newspaper is an integral part of the school curriculum. The court found that Spectrum fell in the latter category" }, { "docid": "12907313", "title": "", "text": "Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Under the Mt. Healthy standard, a public employee establishes a prima facie case of a constitutional violation if she shows that she was engaged in protected activity, and that such activity was a substantial or motivating factor in the decision to terminate her employment. Id. at 287, 97 S.Ct. at 576. In order to defend itself against such a claim, the government must establish by a preponderance of the evidence that the decision to terminate would have been made in the absence of the exercise of the constitutionally protected right. Id. In the present case, it is undisputed that plaintiff’s employment was terminated be cause she had the “R” rated movie shown to her students and because she said she would do it again. Consequently, the focus of our inquiry is whether Fowler’s conduct was constitutionally protected. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Many courts have recognized that a teacher’s First Amendment rights encompass the notion of “academic freedom” to exercise professional judgment in selecting topics and materials for use in the course of the educational process. See, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir.1985), rev’d in part on other grounds, — U.S. —, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir.1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir.1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir.1969); Dean v. Timpson" }, { "docid": "23599682", "title": "", "text": "books, tracts, or other publications.” The superintendent cannot perform his duty under the rule without having the publication submitted to him. The principals believed the rule requires approval of the publication itself: the Fujishima and Peluso suspensions were for “distribution of unauthorized material in the school”; the Balanoff suspensions were for “distribution of unauthorized materials in the school building” and for “distributing unapproved literature in class during fire drill.” Because section 6-19 requires prior approval of publications, it is unconstitutional as a prior restraint in violation of the First Amendment. This conclusion is compelled by combining the holdings of Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Tinker held that, absent a showing of material and substantial interference with the requirements of school discipline, schools may not restrain the full First-Amendment rights of their students. Near established one of those rights, freedom to distribute a publication without prior censorship. Other courts have held unconstitutional similar restraints on student distribution of underground newspapers and political literature. In Riseman v. School Committee, 439 F.2d 148 (1st Cir. 1971), a rule directed against advertising and promoting on school grounds was used to deny permission to a student to distribute political literature. The First Circuit invalidated the rule as vague, overbroad and impermissible as a prior restraint. The court said the school might regulate the time, manner and place of distribution, but could not require advance approval of the content of the material. The Fourth Circuit in Quarterman v. Byrd, 453 F.2d 54 (1971), enjoined the enforcement of a rule which required prior permission from the principal before distributing any material. The court in Sullivan v. Houston Independent School District, 333 F.Supp. 1149 (S.D.Tex.1971), refused to permit the school to give even a one-day review to the principal; the school could not justify imposition of any prior restraint on distribution of underground newspapers. The district court in Eisner v. Stamford Board of Education, 314 F.Supp. 832 (D.Conn.1970)," }, { "docid": "1903548", "title": "", "text": "(2d Cir. 1973) (student not permitted to remain quietly sitting during pledge); Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.1969) (student not permitted to remain in room during pledge). These cases are obviously distinguishable on the ground that they involve the individual rights of students where the exercise of such rights does not result in substantial disruption to the classroom. Two cases have squarely held that a teacher can raise the shield of the first amendment in instances where he is discharged for his refusal to pledge allegiance. In Russo v. Central School District No. 1, 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973) a high school art teacher was dismissed for refusal to participate in the pledge. During the ceremony, she would stand at respectful attention while a fellow teacher assigned to the class conducted the activity. Her behavior was not disruptive. Discharge on the basis of her refusal alone was held to violate her rights. The court limited its holding to the circumstances of the case: the lack of disruption; the supervision of the other teacher; her avoidance of any proselytizing; the fact that her pupils, who ranged in age from 14 to 16 years, “were not fresh out of their cradles.” 469 F.2d at 633. The court noted that if she had been a student her refusal was a form of expression that would have been protected under Barnette. Noting that Tinker v. Des Moines Independent School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 held that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the school house gate,” the court held the legitimate state concerns in maintaining flag salute pro- grains could be furthered in a less restrictive manner and therefore the regulations in question “do not meet the test of constitutional exactness required by the First Amendment.” Russo v. Central School District No. 1, 469 F.2d at 632-633. Similarly, in Hanover v. Northrup, 325 F.Supp. 170 (D.Conn.1970), a seventh and eighth grade teacher was discharged" }, { "docid": "23454154", "title": "", "text": "(1988), the school district’s ability to restrict a student’s speech requires a showing that such speech would “substantially interfere with the work of the school or impinge upon the rights of other students.” Tinker v. Des Moines School Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969). It is well established that students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506, 89 S.Ct. at 736 (holding that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students”). In Tinker, the Supreme Court set forth the relevant analytical framework for addressing the question of how to accommodate First Amendment rights in the school environment: A student’s personal expression may be restricted where the forbidden conduct “in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of oth-ers_” Id. at 513, 89 S.Ct. at 740 (holding that the Des Moines School District could not punish high-school and junior high-school students for wearing black arm bands to school in protest of the Vietnam war where the students merely caused discussion outside the classrooms and neither interrupted school activities nor sought to intrude in the school’s affairs or the lives of others). However, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,” id. at 508, 89 S.Ct. at 737, and the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” cannot justify the prohibition by school officials of a particular expression of opinion, id. at 509, 89 S.Ct. at 737-38. “Thus, if the speech involved is not fairly considered part of the school curriculum or school-sponsored activities, then it may only be regulated if it would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’ ” Roberts v. Madigan, 921 F.2d" }, { "docid": "16649522", "title": "", "text": "and $12,-750 as costs and attorney’s fees. The District invokes our jurisdiction to hear its appeal under 28 U.S.C. § 1291. Before addressing the District’s arguments on appeal, we will review a few basic principles of First Amendment jurisprudence. It is well established that high school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). It is also well established, however, that a student’s First Amendment rights are not absolute; the limits of a student’s right to express himself must be defined in light of the special characteristics of the school environment. Id. at 506, 89 S.Ct. at 736. As our Court said in Nicholson v. Board of Education, 682 F.2d 858 (9th Cir.1982), “In the high school setting, school officials and teachers must be accorded wide latitude over decisions affecting the manner in which they educate students.” Id. at 863. The discretion of school authorities in managing school affairs is necessarily limited, however, by “the imperatives of the First Amendment.” Board of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2807, 73 L.Ed.2d 435 (1982) (plurality opinion). Under Tinker and its progeny, “school officials must bear the burden of demonstrating ‘a reasonable basis for interference with student speech, and ... courts will not rest content with officials’ bare allegation that such a basis existed.’ ” Trachtman v. Anker, 563 F.2d 512, 517 (2d Cir.1977) quoting Eisner v. Stamford Board of Education, 440 F.2d 803, 810 (2d Cir.1971). See also, Scoville v. Board of Education, 425 F.2d 10, 13 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). Under our Constitution, it is the role of the judicial branch of government to resolve First Amendment controversies between students and public school officials such as the one between Matthew Fraser and the Bethel School District. A celebrated case in point is West Virginia v. Barnette, 319 U.S. 624, 63 S.Ct. 1178," }, { "docid": "15825122", "title": "", "text": "uphold the highest standards of the school, all as required by the terms of their oath of office. [Student by-laws, Article 4, Section 2, Defts.’ Ex. I.] Free Speech In support of their position that their constitutional rights to free speech have been violated, plaintiffs argue that the November 5, 1969, issue of Oink (Ex. 4) did not cause disruption or interference with the normal educational program at Warren High School and that they were merely expressing their views and opinions, which they had every right to do although such expression might be unpopular with some. Zucker v. Panitz, 299 F.Supp. 102, 105 (S.D.N.Y., 1969), on which plaintiffs rely, involved the publishing in a school paper of a paid advertisement opposing the Vietnam war. The District Court held that the paper was open to the free expression of ideas and that the students were entitled to publish the advertisement on freedom of speech grounds. Plaintiffs also cite Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), which case concerned the rights of a few high school students to wear black arm bands to protest the war in Vietnam. Five students were suspended. The Supreme Court held that the wearing of the arm bands was akin to free speech and that First Amendment rights were available to teachers and students, subject to application in light of the special characteristics of the school environment. The Court went on to say that a student may express his opinions on campus, even on controversial subjects, “* * * if he does so without ‘materially and substantially interfering] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others. Burnside v. Byars, supra, [5 Cir.] 363 F.2d [744] at 749.” [Page 513, 89 S.Ct. page 740.] What appears to be the test is set forth at page 509 of the opinion at page 738 of 89 S.Ct.: “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion," }, { "docid": "7955865", "title": "", "text": "reasonable that the constitutional limits on student expression in the schoolhouse may be different from those in the community at large, because there are different elements in balancing the private and public interests involved. The school environment is unique due to its physically confining nature, the immaturity of its population and the special demands and needs of the educational purpose. “Obviously -those limits to expression applicable to' society generally are also applicable to the schoolhouse. Given the peculiar nature and purpose of the school environment, it seems that the school administrator should have the discretion to impose somewhat more restrictive limits where he deems it advisable or necessary. * * * Rigid constitutional constraints imposed by a judiciary untrained in the problems of operating public schools would have the effect of precluding the exercise of prudent judgment by those knowledgable and trained in public school administration.” See, also, dissenting opinion of Justice Harlan in Tinker (393 U.S. p. 526, 89 S.Ct. p. 747) that, in any attack on the school authority’s discretion, the student must assume the burden of showing that a “particular school measure was motivated by other than legitimate school concerns — for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.” . Eisner v. Stamford Board of Education (2d Cir. 1971) 440 F.2d 803, 806-807; Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031. A similar rule prevails where the printed material is obscene. Close v. Lederle (1st Cir. 1970) 424 F.2d 988, 990, cert, den., 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140; Baker v. Downey City Board of Education (D.C.Cal.1969) 307 F.Supp. 517, 526-527; but, cf., Keefe v. Geanakos (1st Cir. 1969) 418 F.2d 359; Vought v. Van Buren Public Schools (D.C.Mich.1969) 306 F.Supp. 1388, 1392. The American Civil Liberties Union, in its bulletin, Academic Freedom in the Secondary Schools (at 11-12) phrases the right of prior restraint, as applied to high school students, thus: “Neither the faculty advisors nor the principal should prohibit the publication or" }, { "docid": "9687432", "title": "", "text": "to us that books which become obsolete or irrelevant or where improperly selected initially, for whatever reason, can be removed by the same authority which was empowered to make the selection in the first place. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is equally far afield. There the court did intrude into the field of public education by invalidating a regulation of school principals which suspended students who wore black armbands to classes symbolizing their objection to hostilities in Vietnam. This was deemed a violation of their right to free speech under the first amendment in the absence of a showing that the conduct of the students materially disrupted classwork or involved substantial disorder or invasion of the rights of others. The appellant conveniently ignores the factual setting of Tinker but would have us apply its test. Since the shelving of Down These Mean Streets did not create any disruption or disorder, it is argued, it should remain on the shelf. There is here no problem of freedom of speech or the expression of opinions on the part of parents, teachers, students or librarians. As we have pointed out, the discussion of the book or the problems which it encompasses or the ideas it espouses have not been prohibited by the Board’s action in removing the book. The administration of any library, whether it be a university or particularly a public junior high school, involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities. To suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept. Appellant finally urges upon us two cases Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969) and Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). Both of these eases involved high school teachers of junior and senior students who assigned material for outside reading which school officials found offensive and inappropriate. Upon a refusal" }, { "docid": "10736630", "title": "", "text": "to the district court for entry of an appropriate judgment in accordance with this opinion. . The problems raised by this case defy geometric solutions. The best one can hope for is to discern lines of analysis and advance formulations sufficient to bridge past decisions with new facts. One must be satisfied with such present solutions and cannot expect a clear view of the terrain beyond the periphery of the immediate case. It is a frustrating process which does not admit of safe analytic harbors. . Tinker upheld the right of public secondary school students to wear black arm bands to school in protest of the Vietnam War, a protest that the majority characterized as “a silent, passive, expression of opinion, unaccompanied by any disorder or disturbance.” 393 U.S. at 508, 89 S.Ct. at 737. Tinker has been characterized as adopting the view “that the process of education in a democracy must be democratic.” Note, The Supreme Court, 1968 Term, 83 Harv.L.Rev. 7, 159 (1969). . E. g., Butts v. Dallas Ind. School Dist., 436 F.2d 728 (filed Jan. 14, 1971, 5th Cir.) ; Scoville v. Board of Educ., 425 F.2d 10, 14 (7th Cir. 1970) (en banc), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970) (school must make “affirmative showing” that it could reasonably forecast “substantial disruption”) ; Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970) ; Zucker v. Panitz, 299 F.Supp. 102 (S.D.N.Y.1969). . This holding is in accord with the sensible observation in Richards v. Thurston, 424 F.2d 1281, 1282 (1st Cir. 1970), that the Constitution does not condition the exercise of power to prevent disruption of public schools upon the pre-existence of a rule specifically authorizing the particular action taken. . Because of such factors as the larger size of university campuses, and the tendency of students to spend a greater portion of their time there, the inhibitive effect of a similar policy statement might be greater on the campus of an institution of higher education than on the premises of a secondary school and the justifications for such a policy" }, { "docid": "301276", "title": "", "text": "666, 82 L.Ed. 949 (1938). Although no case precisely on point has been found, several recent rulings give strong support to this Court’s opinion. In Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass. February 5, 1970), Judge Garrity in a reasoned opinion held that the prior submission to a faculty advisory board of material intended to be published in the student newspaper of a state college cannot be constitutionally required. In Zucker v. Panitz, 299 F.Supp. 102 (S.D.N.Y.1969), a summary judgment was granted enjoining a high school principal from interfering with the right of students to place advertisements of their political views on the Vietnam conflict in the school newspaper. And in Brooks v. Auburn University, 296 F.Supp. 188 (M.D.Ala.1969), the court observed, at 196, that: “* * * [t]he State of Alabama cannot, through the President of Auburn University, regulate the content of the ideas students may hear. To do so is illegal and thus unconstitutional censorship in its rawest form.” See also Sullivan v. Houston Independent School District, 307 F.Supp. 1328 (S.D.Tex.1969). IV. The right of students to freedom of expression, however, is not absolute. The “heavy presumption” against restrictive regulations on free speech and press, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), may be overcome “in carefully restricted circumstances.” Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 513, 89 S.Ct. 733. School administrations of necessity must have wide latitude in formulating rules and guidelines to govern student conduct within the school. If there is “a specific showing of constitutionally valid reasons to regulate their speech,” Id. at 511, 89 S.Ct. at 739, students must conform to reasonable regulations which intrude on that freedom. Free speech is subject to reasonable restrictions as to time, place, manner and duration. Id. at 512-513, 89 S.Ct. 733. See also Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). In the present case, the defendants have not produced a scintilla of proof which" }, { "docid": "15825121", "title": "", "text": "part of said advertisement, by the adding and positioning of a finger, (b) that the suspensions were not in violation of the plaintiffs’ right to free speech but were within the authority of the High School administrators in performance of their obligation and duty to maintain a proper educational program with the necessary control and discipline of students to assure its success and to insure the careful supervision of the moral conditions in their school, as required by paragraph 24, Title 5, California Administrative Code, (c) that the due process prescribed by Section 10607 is sufficient in the circumstances and that no other proceedings, such as a hearing prior to effecting suspension, are required to conform to the due process rights of plaintiffs, (d) that the plaintiffs rights to free speech were not violated, and (e) the plaintiffs, and each of them failed to uphold the rules and regulations of the student body and school and to set an example in leadership which would be a pattern for conduct among the students and failed to uphold the highest standards of the school, all as required by the terms of their oath of office. [Student by-laws, Article 4, Section 2, Defts.’ Ex. I.] Free Speech In support of their position that their constitutional rights to free speech have been violated, plaintiffs argue that the November 5, 1969, issue of Oink (Ex. 4) did not cause disruption or interference with the normal educational program at Warren High School and that they were merely expressing their views and opinions, which they had every right to do although such expression might be unpopular with some. Zucker v. Panitz, 299 F.Supp. 102, 105 (S.D.N.Y., 1969), on which plaintiffs rely, involved the publishing in a school paper of a paid advertisement opposing the Vietnam war. The District Court held that the paper was open to the free expression of ideas and that the students were entitled to publish the advertisement on freedom of speech grounds. Plaintiffs also cite Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)," } ]

[ { "docid": "22666122", "title": "", "text": "to write a ticket. The recommended position for him at this time would be to the right side of the patrol unit. Should the driver of the violator vehicle make exit from his seat, the officer should direct the violator to the rear center of his vehicle or the front center area of the patrol unit. Preferably, the officer should verbally attempt to get the violator co re-enter and remain in the vehicle.” A. Yount, Vehicle Stops Manual, Misdemeanor and Felony 2-3 (1976). Conflicting advice is found in, an earlier work, G. Payton, Patrol Procedure 298 (4th ed. 1971). It is worth noting that these authorities suggest that any danger to the officer from passing traffic may be greatly reduced by the simple and unintrusive expedient of parking the police car behind, and two or three feet to the left of, the offender’s vehicle. Folley, supra, at 93; Payton, supra, at 301; Yount, supra, at 2. Government instrusions must be justified with particularity in all but a few narrowly cabined contexts. Inspections pursuant to a general regulatory scheme and stops at border checkpoints are the best known exceptions to the particularity requirement. And even these limited exceptions fit within a broader rule — that the general populace should never be subjected to seizures without some assurance that the intruding officials are acting under a carefully limited grant of discretion. Health and safety inspections may be conducted only if the inspectors obtain warrants, though the warrants may be broader than the ordinary search warrant; officials may not wander at large in the city, conducting inspections without reason. Camara v. Municipal Court, 387 U. S. 523. Similar assurances of regularity and fairness can be found in public, fixed checkpoints: “[Checkpoint operations both appear to and actually involve less discretionary enforcement activity [than stops by roving patrols]. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials" } ]

[ { "docid": "16931930", "title": "", "text": "intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest. The cases relied upon by the appellants are inapposite. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court held that a vehicle may be stopped at a fixed checkpoint near the border for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens. Id. at 556-64, 96 S.Ct. at 3082-3085. In so holding, the Court weighed the public interest against the fourth amendment interest of the individual. Id. at 556-60, 96 S.Ct. at 3082-3084. The government interests recognized in Martinez, including the importance of stopping the flow of illegal aliens at locations close to the border, are simply not applicable here, where we consider the right of the general populace of California to move throughout the state without restriction. The same can be said about the government’s reliance on Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In Mimms, the Supreme Court held that asking the driver of a car which had been stopped for a traffic violation to step out of the car did not violate the guarantees contained in the fourth amendment. The Court found that the government’s justification, safety of the officer, outweighed the minimal intrusion upon the person who had already been legitimately stopped. Id. at 110 — 11, 98 S.Ct. at 333. The government’s justification of the section 647(e) identification requirement is not as significant since an officer’s demand may be made in the absence of any known unlawful conduct, and the intrusion is not de minimis. Moreover, a license to operate a vehicle is a privilege, see Serenko v. Bright, 263 Cal.App.2d 682, 70 Cal.Rptr. 1, 4 — 5 (1968), not a constitutionally protected right like the freedom to go where one pleases. See Papachristou, 405 U.S. at 163-65, 92 S.Ct. at 843-845. We hold that section 647(e) impermissibly intrudes upon the fourth amendment’s proscription against unreasonable searches and seizures. 3. Arbitrary Enforcement A" }, { "docid": "11508083", "title": "", "text": "brief stop, and the absence of practical alternatives for policing the border,” the Court held “that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the ear briefly and investigate the circumstances that provoke suspicion.” Since, however, “[r]oads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well,” the Court recognized that “[t]o approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Boarder Patrol officers.” Consequently, the Court was not convinced that the legitimate needs of law enforcement require this degree of interference with lawful traffic. . [A] requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border area from indiscriminate official interference. Under the circumstances, and even though the intrusion incident to a stop is modest, we conclude that it is not “reasonable” under the Fourth Amendment to make such stops on a random basis. Moreover, the Brignoni-Ponce Court continued, “[f]or the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.” So, tracking Terry, the Court proclaimed that “[e]xcept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country”; and that standard had not been met: In this case the officers relied on a single factor to justify stopping respondent’s car: the apparent Mexican ancestry of the occupants." }, { "docid": "16931931", "title": "", "text": "331 (1977). In Mimms, the Supreme Court held that asking the driver of a car which had been stopped for a traffic violation to step out of the car did not violate the guarantees contained in the fourth amendment. The Court found that the government’s justification, safety of the officer, outweighed the minimal intrusion upon the person who had already been legitimately stopped. Id. at 110 — 11, 98 S.Ct. at 333. The government’s justification of the section 647(e) identification requirement is not as significant since an officer’s demand may be made in the absence of any known unlawful conduct, and the intrusion is not de minimis. Moreover, a license to operate a vehicle is a privilege, see Serenko v. Bright, 263 Cal.App.2d 682, 70 Cal.Rptr. 1, 4 — 5 (1968), not a constitutionally protected right like the freedom to go where one pleases. See Papachristou, 405 U.S. at 163-65, 92 S.Ct. at 843-845. We hold that section 647(e) impermissibly intrudes upon the fourth amendment’s proscription against unreasonable searches and seizures. 3. Arbitrary Enforcement A statute violates the due process clause when it is so vague and indefinite as to encourage arbitrary and discriminatory enforcement. Papachristou, id. at 162, 92 S.Ct. at 843. The Solomon court held that section 647(e) was not so susceptible because it becomes operative only when the surrounding circumstances indicate to a reasonable man some impairment of the public safety, and when such circumstances can be objectively defined and articulated. Solomon, 33 Cal.App.3d at 438-39, 108 Cal. Rptr. 867. Accord State v. Bicker, 311 So.2d 104, 110 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). We again find ourselves in agreement with United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974), aff’d sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). We believe that section 647(e) impermissibly grants the police virtually unfettered discretion by providing no standards for determining whether a person is engaged in suspicious loitering, and by failing to specify what forms of identification" }, { "docid": "20973642", "title": "", "text": "limited seizures based on no artieuable suspicion at border and sobriety checkpoints. See United States v. Martinez-Fuerte, 428 U.S. 543, 561-62, 96 S.Ct. 3074, 3084-85, 49 L.Ed.2d 1116 (1976); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 448-49, 110 S.Ct. 2481, 2484-85, 110 L.Ed.2d 412 (1990). In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court determined that brief stops at permanent border checkpoints did not violate the Fourth Amendment. Applying the Brown v. Texas balancing test, the Court recognized a substantial public interest in intercepting illegal aliens attempting to enter the United States. Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. at 3082. Moreover, border checkpoints are necessary to enforce our immigration laws. Analyzing the effects of the seizure on individual liberty, the Court reasoned that the objective intrusion, the stop itself, the questioning, and the visual inspection create a permissible limited intrusion on the individual’s Fourth Amendment interests. The Court recognized, however, that checkpoint stops are distinct from roving patrols “because the subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop.” Id. at 557, 96 S.Ct. at 3083. This conclusion was founded in part on the fact that “the motorist can see that other vehicles are being stopped, he can see visible signs of the officer’s authority, and he is much less likely to be frightened or annoyed by the intrusion.” Id. In contrast, the unpredictable nature of a roving patrol may frighten individuals. In Michigan v. Sitz, the Supreme Court reversed the Michigan Court’s determination that sobriety checkpoints violate the Fourth Amendment. The sobriety checkpoints were conducted pursuant to specific guidelines. All vehicles were stopped briefly at the checkpoint and its driver observed for signs of intoxication. The Court determined that the state’s interest in preventing drunk driving advanced by the checkpoint outweighed the limited degree of intrusion upon the individual motorist. The Court agreed with the Michigan Court’s analysis regarding the objective intrusion, measured by the duration of the seizure and" }, { "docid": "23431244", "title": "", "text": "persons were armed or dangerous. The district court held, and we agree, that a street stop is justifiable here only when the INS agent has a “reasonable suspicion based on specific articulable facts that such person is an alien [unlawfully] in the [United States].” United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. at 2582. Defendants argue that this standard is contrary to law. However, this standard is substantially embodied in a 1969 INS guideline, but unfortunately it is not being followed by INS officers in the field. 398 F.Supp. at 902, 903. Although defendants claim that the standard conflicts with the breadth of 8 U.S.C. § 1357(a)(1), they conveniently overlook the origin of this standard. Thus in BrignoniPonce, the Supreme Court held that said statute is so circumscribed by the Fourth Amendment that vehicles may be stopped by INS agents only “if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” 422 U.S. at 884, 95 S.Ct. at 2582. We do not think that United States v. Martinez-Fuerte,- U.S. -, 96 S.Ct. 3074, 49 L.Ed.2d-, requires a different result. That case held that government agents did not need reasonable suspicion to stop cars at permanent border checkpoints for the purpose of asking occupants about their residence. That ruling is explicitly limited by the Court to those intrusions at permanent checkpoints -U.S. at -, 96 S.Ct. at 3087 because of the limited nature of the intrusion and the regularity of the exercise of authority. - U.S. at-, 96 S.Ct. at 3082-3084. Martinez-Fuerte therefore does not apply either to searches of dwellings (-U.S. at-, 96 S.Ct. at 3084) or street stops of individuals (-U.S. at-, 96 S.Ct. at 3082). Plaintiffs also established that defendants’ conduct caused irreparable harm because the wrongs inflicted were not readily measurable in terms of monetary damages and the recovery of damages alone would not insure the cessation of such invasions in the future. Furthermore, the defendants might be insulated from damage suits if" }, { "docid": "20973641", "title": "", "text": "constitutionally intrusive and offensive tactics based solely on geographical data applied to a group of individuals. Moreover, the drug interdiction here is not analogous to the “drug courier profile” cases. In the drug courier profile context, an officer typically approaches an individual based on various indicators observed, including her origination point. See Florida v. Rodriguez, 469 U.S. 1, 3, 105 S.Ct. 308, 309, 83 L.Ed.2d 165 (1984). The initial encounter is consensual so long as a reasonable person would feel free to leave. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983). In this case, the initial encounter was not consensual and the behavior of the passengers was not observed until the intrusion had occurred. The police conduct in the drug courier profile context is passive followed by consensual questioning. In contrast, here, the police actively initiated the contact and required compliance with departure instructions in order to observe the reaction of the passengers. This drug interdiction is also distinguishable from situations where the Supreme Court has approved limited seizures based on no artieuable suspicion at border and sobriety checkpoints. See United States v. Martinez-Fuerte, 428 U.S. 543, 561-62, 96 S.Ct. 3074, 3084-85, 49 L.Ed.2d 1116 (1976); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 448-49, 110 S.Ct. 2481, 2484-85, 110 L.Ed.2d 412 (1990). In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court determined that brief stops at permanent border checkpoints did not violate the Fourth Amendment. Applying the Brown v. Texas balancing test, the Court recognized a substantial public interest in intercepting illegal aliens attempting to enter the United States. Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. at 3082. Moreover, border checkpoints are necessary to enforce our immigration laws. Analyzing the effects of the seizure on individual liberty, the Court reasoned that the objective intrusion, the stop itself, the questioning, and the visual inspection create a permissible limited intrusion on the individual’s Fourth Amendment interests. The Court recognized, however, that checkpoint stops are distinct from roving patrols “because the subjective intrusion" }, { "docid": "14183941", "title": "", "text": "yards there are ten highway marking cones in the middle of the road. At the checkpoint we have a traffic cheek van, which is also parked on the eastside of the highway, with three flashing red-lights. On the other side of the highway there is a flashing redlight facing traffic coming north. There is an amber going the other way. We have a trailer, toilet facilities, electricity. At the time Vasquez-Guerrero was arrested, the checkpoint was in operation at least five days per week. During those days, the checkpoint was manned at least 16 hours per day. When manpower was available, agents were on duty 24 hours per day. II In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court was asked to determine whether a vehicle could constitutionally be stopped at the San Clemente checkpoint even though there was no reason to believe that' the particular vehicle contained illegal aliens. To resolve this question, the Court noted that in determining constitutional safeguards applicable in particular situations, the Court “has weighed the public interest against the Fourth Amendment interest of the individual.” 428 U.S. at 555, 96 S.Ct. at 3081. See also United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court then noted that the United States has a substantial interest in controlling the flow of illegal aliens. Carrying out a program of routine stops for brief questioning at permanent checkpoints is effective in support of this interest. 428 U.S. at 556, 96 S.Ct. at 3082. At the same time, routine stops involving brief questioning at permanent checkpoints create only a limited intrusion upon Fourth Amendment interests. This encroachment is limited both in terms of the individual motorist’s subjective sense of intrusion and in terms of overall interference with legitimate traffic. 428 U.S. at 559-560, 96 S.Ct. at 3083. The Court concluded that because of the substantial public interest in maintaining the checkpoints and because there is a minimal intrusion" }, { "docid": "23519386", "title": "", "text": "by the Fourth Amendment when he inserted his head into the vehicle through the driver-side window and smelled the marijuana. He argued that the court should have suppressed the cocaine later discovered as a fruit of this illegal search. On this issue, the panel held that Hillin conducted a search when he stuck his head into the vehicle and that the search was unreasonable. The panel concluded further that Harris’ consent to search the luggage was not sufficiently attenuated from the illegal search to cure the taint. Id. at 390-91. It determined therefore that the district court should have suppressed the evidence and reversed Harris’ convictions. On the court’s own motion, we ordered rehearing en banc primarily to address this issue. United States v. Pierre, 943 F.2d 6 (5th Cir.1991). II. The search and arrests at issue took place at the Sierra Blanca checkpoint, a fixed checkpoint on Interstate 10 near the Texas-Mexico border. The key case establishing the constitutional limits of non-border checkpoint stops at this and other similar locations is United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In that case the Supreme Court held that agents at fixed checkpoints may stop and briefly question the occupants of any vehicle without violating their Fourth Amendment rights. The Court agreed that the stops do intrude to some degree “on motorists’ right to ‘free passage without interruption.’ ” But the Court reasoned that the government has a substantial interest in conducting routine stops for inquiry at permanent checkpoints near the border to interrupt the flow of illegal aliens into the country from Mexico. Id. at 557-58, 96 S.Ct. at 3082-83. The Court also noted that “while the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited.” Id. at 557, 96 S.Ct. at 3083. In particular, “all that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” Id. at 558, 96 S.Ct. at 3083" }, { "docid": "14183946", "title": "", "text": "of legitimate motorists. Second, we conclude that the Oak Grove checkpoint is not objectionable in terms of overall interference with legitimate traffic. See 428 U.S. at 559-560, 96 S.Ct. at 3083. When the checkpoint is in operation, it is always located at the same site. Due to this permanency in location, motorists may obtain warning that they will be checked at that site rather than elsewhere. Motorists in general will not be taken by surprise. In addition, Oak Grove, like all established Border Patrol checkpoints, is operated so that agents screen only those motorists passing by. See United States v. Baca, supra, 368 F.Supp. at 406-07. As the Supreme Court has noted, this minimizes the individual officer’s discretionary enforcement activity. United States v. Martinez-Fuerte, supra, 428 U.S. at 558-559, 96 S.Ct. at 3083. The location of a checkpoint is a crucial factor affecting overall interference with legitimate traffic. See 428 U.S. at 556, 562, n.15, 96 S.Ct. at 3082, 3084. Thus, the discretion of the Border Patrol in locating a checkpoint is subject to review. 428 U.S. at 563, 96 S.Ct. at 3085. It has been determined earlier that the traffic flow along route 79 is at one of its lowest points at Oak Grove. United States v. Baca, supra, 368 F.Supp. at 412. By locating a checkpoint at Oak Grove, the Border Patrol can carry out the essential task of screening motorists along route 79, thereby insuring the effectiveness of the San Clemente and Temecula checkpoints, and at the same time minimize interference with legitimate traffic. The Oak Grove checkpoint is reasonably located. See United States v. Martinez-Fuerte, supra, 428 U.S. at 562 n. 15, 96 S.Ct. at 3084. Because the public interests and private Fourth Amendment rights involved in this case are indistinguishable from those considered in United States v. Martinez-Fuerte, we conclude that the Border Patrol station at Oak Grove is a reasonably located “permanent checkpoint” within the meaning of Martinez-Fuerte. Accordingly, we hold that the routine stop of Vasquez-Guerrero, during which the illegal aliens which he was transporting were discovered, was constitutionally permissible. AFFIRMED. . In" }, { "docid": "16931929", "title": "", "text": "the former is permitted. Although the pat down can be a degrading experience, especially when conducted in public view, it is ephemeral and, in the absence of weapons, lacks collateral consequences. The potential for subsequent police action or abuse is not materially enhanced. In contrast, police knowledge of the identity of an individual they have deemed “suspicious” grants the police unfettered discretion to initiate or continue investigation of the person long after the detention has ended. Information concerning the stop, the arrest and the individual’s identity may become part of a large scale data bank. In fact, the public concern advanced in support of section 647(e) is the prevention of crime, Solomon, 33 Cal.App.3d at 436-37, 108 Cal. Rptr. 867, namely the state’s interest in allowing police officers to gather information which will aid them in detecting crime. The Supreme Court has recognized the significant intrusion occasioned by an identification requirement in a statute. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). We believe that the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest. The cases relied upon by the appellants are inapposite. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court held that a vehicle may be stopped at a fixed checkpoint near the border for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens. Id. at 556-64, 96 S.Ct. at 3082-3085. In so holding, the Court weighed the public interest against the fourth amendment interest of the individual. Id. at 556-60, 96 S.Ct. at 3082-3084. The government interests recognized in Martinez, including the importance of stopping the flow of illegal aliens at locations close to the border, are simply not applicable here, where we consider the right of the general populace of California to move throughout the state without restriction. The same can be said about the government’s reliance on Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d" }, { "docid": "10435205", "title": "", "text": "driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.” Id. at 109, 98 S.Ct. at 332. To answer its question, the Court focused on “the incremental intrusion resulting from the request to get out of the car.” Id. The Court first examined the public interest. Initially, the Court made clear that the police officer had no reason to suspect “foul play” from the particular driver, “there having been nothing unusual or suspicious about his behavior.” Id. Rather, the police officer’s routine practice was to order all drivers out of their vehicles after traffic stops. The Court held nevertheless that the state’s interest in protecting officer safety was “both legitimate and weighty” and that this interest was enhanced by the officer’s practice. Id. at 110, 98 S.Ct. at 333. The Court recognized “the inordinate risk confronting an officer as he approaches a person seated in an automobile.” Id. Balanced against the state’s interest, the Court weighed the intrusion into a driver’s personal liberty of the order to step out of the vehicle after the vehicle had already been validly stopped for a traffic infraction. The Court concluded that the additional intrusion “can only be described as de minimis.” Id. at 111, 98 S.Ct. at 333. Later, the Court found additional ways to characterize the intrusion, including “hardly ris[ing] to the level of a ‘petty indignity,’ ” and “a mere inconvenience.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968)). The Court concluded that the public interest in officer safety prevailed, holding that a police officer as a routine practice may order the driver to step out of a lawfully detained motor vehicle. Ruvalcaba contends that his situation is distinguishable from Mimms because he was a passenger in the vehicle, whereas Mimms was the driver. Ruvalcaba argues that “passengers have done no wrong, violated no laws, and there is no basis to deprive them of their liberty.” While we agree with Ruvalcaba that Mimms does not control the outcome, we believe that the reasoning behind Mimms is equally applicable to" }, { "docid": "6452499", "title": "", "text": "the Court examined the public interest in effective prevention of illegal entry of aliens at the Mexican border, which creates “significant economic and social problems.” Id. at 878-79, 95 S.Ct. at 2579. Against this valid public interest, the Court weighed the interference with individual liberty that results when an officer stops an automobile and questions its occupants, finding this intrusion to be “modest.” Id. at 879, 95 S.Ct. at 2579. The Court concluded: [Bjecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be “reason ably related in scope to the justification for their initiation.” Id. at 881, 95 S.Ct. at 2580. The Court elaborated by noting that the reasonableness requirement allows the government “adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.” -Id. at 888, 95 S.Ct. at 2581. As such, the Court found that, even though the intrusion on personal liberty by roving Border Patrol agents is modest, “it is not ‘reasonable’ under the Fourth Amendment to make such stops on a random basis.” Id. Finally, .although holding that the apparent Mexican ancestry of the vehicle’s occupants was one of several factors that legitimately inform the reasonable suspicion analysis, the Court nonetheless found that “standing alone it does not justify stopping all Mexican-Amerieans to ask if they are aliens.” Id. at 887, 95 S.Ct. at 2583. B. The Valid Public Interest Underlying the Reasonable Suspicion Standard In Brignoni-Ponce, the Supreme Court noted the important public interest in effective prevention of the illegal entry of aliens at the Mexican border: Estimates of the number of illegal immigrants in the United States vary wide-ly____ Whatever the number, these aliens create significant economic and social problems, competing with" }, { "docid": "3383575", "title": "", "text": "the dog alerted positively. The detention for this portion of the inspection lasted approximately 60 seconds. The parties stipulated that Gary had probable cause to search the vehicle for narcotics after the trained dog had alerted. About 800 grams of methamphetamine, two handguns, money and drug paraphernalia were discovered in this search. The sole issue on appeal is whether the brief continuation of this otherwise proper checkpoint detention for purposes of the canine sniff violated the fourth amendment. We hold that it did not. A stop at a permanent U.S. Border Patrol checkpoint constitutes a “seizure” within the meaning of the fourth amendment. United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976). Such a stop is reasonable per se, so long as the scope of the detention remains confined to a few brief questions, the possible production of a document indicating the detainee’s lawful presence in the United States, and a “visual inspection of the vehicle ... limited to what can be seen without a search.” Id. at 558, 562, 96 S.Ct. at 3083, 3085. The Supreme Court has cautioned, however, that “[t]he principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.” Id. at 566-67, 96 S.Ct. at 3087. Thus, beyond limited intrusions, “checkpoint searches are constitutional only if justified by consent or probable cause to search.” Id. at 567, 96 S.Ct. at 3087. The parties do not dispute the propriety of the initial stop nor that referral to the secondary station was justified by the nervous behavior of the vehicle occupants. The heart of their disagreement lies in the legality of the actions that took place after the trunk of the car had been searched and the immigration purposes of the stop had been served. Because of the intrusiveness inherent in extending the detention beyond the time required for immigration purposes, the government must present some justification for the brief additional delay. See id. at 557-58, 567, 96 S.Ct. at 3082-83, 3087. Although Taylor had consented to the visual inspection of the interior" }, { "docid": "14183943", "title": "", "text": "upon Fourth Amendment rights where reasonable procedures are used, stops for brief questioning routinely conducted at reasonably located permanent checkpoints are consistent with the Fourth Amendment and need not be based on indi vidualized suspicion, 428 U.S. at 561, 96 S.Ct. at 3084, nor authorized by warrant, 428 U.S. at 565, 96 S.Ct. at 3086. Ill In this case, Vasquez-Guerrero argues that the rule of Martinez-Fuerte does not apply because the checkpoint at Oak Grove is not “permanent” and is not “reasonably located.” Instead, he argues, the situation is analogous to a roving patrol stop. Under United States v. Brignoni-Ponce, supra, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, a roving patrol stop may be made if the patrolling officer is aware of specific articulable facts, together with rational inferences derived from those facts, that reasonably warrant a suspicion that a vehicle contains illegal aliens. Thus, Vasquez-Guerrero contends that the stop at Oak Grove was illegal, for the agent who effected the stop articulated no specific facts giving rise to a founded or reasonable suspicion. We reject the argument of Vasquez-Guerrero and conclude that the Oak Grove checkpoint was both permanent and reasonably located within the meaning of Martinez-Fuerte. Thus a routine stop for brief questioning, such as occurred in this case, is constitutionally permissible. In arriving at this conclusion, we evaluate the same factors which the Court considered critical in Martinez-Fuerte and engage in the same balancing process. We believe that the substantial public interest in controlling illegal alien traffic by maintaining a checkpoint at Oak Grove is identical to the public interest furthered by the San Clemente checkpoint. See United States v. Martinez-Fuerte, supra, 428 U.S. at 556, 96 S.Ct. at 3082. Like the checkpoint at San Clemente, the Oak Grove station serves to check the flow of illegal aliens into the United States, both by facilitating the apprehension of aliens who have already entered into this country and by deterring others who have not yet entered. Moreover, the Oak Grove checkpoint, because of its strategic location on route 79, serves to insure the effectiveness of the" }, { "docid": "23519387", "title": "", "text": "Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In that case the Supreme Court held that agents at fixed checkpoints may stop and briefly question the occupants of any vehicle without violating their Fourth Amendment rights. The Court agreed that the stops do intrude to some degree “on motorists’ right to ‘free passage without interruption.’ ” But the Court reasoned that the government has a substantial interest in conducting routine stops for inquiry at permanent checkpoints near the border to interrupt the flow of illegal aliens into the country from Mexico. Id. at 557-58, 96 S.Ct. at 3082-83. The Court also noted that “while the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited.” Id. at 557, 96 S.Ct. at 3083. In particular, “all that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” Id. at 558, 96 S.Ct. at 3083 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2579-80, 45 L.Ed.2d 607 (1975)). The Court recognized that officers may refer cars to the secondary inspection area for any or no reason. Martinez-Fuerte, 428 U.S. at 562, 96 S.Ct. at 3085; 25 see also United States v. Price, 869 F.2d 801, 804 (5th Cir.1989) (quoting United States v. Garcia, 616 F.2d 210, 211 (5th Cir.1980)); United States v. Gonzalez-Basulto, 898 F.2d 1011, 1012 (5th Cir.1990). If agents wish to search vehicles or their occupants, however, they must have probable cause or consent. Martinez-Fuerte, 428 U.S. at 567, 96 S.Ct. at 3087; United States v. Jackson, 825 F.2d 853 (5th Cir.1987) (en banc). In Jackson, the en banc court applied the holding in Martinez-Fuerte specifically to the Sierra Blanca checkpoint. We held that Sierra Blanca is not the “functional equivalent” of the border; consequently full customs and immigration searches are not allowed. We also held that Martinez-Fuerte delineates the lawful scope of law enforcement action during stops at the Sierra Blanca checkpoint. With" }, { "docid": "8451624", "title": "", "text": "quite limited. The stop does intrude to a limited extent on motorists’ right to “free passage without interruption,” Carroll v. United States, 267 U.S. 132, 154 [45 S.Ct. 280, 285, 69 L.Ed. 543] (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which “[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” United States v. Brignoni-Ponce, [422 U.S. 873], 880 [95 S.Ct. 2574, 2580, 45 L.Ed.2d 607] [ (1975) ]. Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. Routine checkpoint stops do not intrude [as much as roving patrols] on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. Martinez-Fuerte, 428 U.S. at 556-59, 96 S.Ct. at 3082-84 (other citations omitted). The Court went on to hold that the stops and questioning “may be made in the absence of any individualized suspicion,” id. at 562, 96 S.Ct. at 3085, “that it is constitutional to refer motorist selectively to the secondary inspection area [without reasonable suspicion],” see id. at 563, 96 S.Ct. at 3085, and “that the Border Patrol officers must have wide discretion in selecting the motorists to be diverted.” Id. at 563-64, 96 S.Ct. at 3085. Since Martinez-Fuerte, our cases have recognized that no individualized suspicion is necessary to stop, question, and then selectively refer motorists to a secondary inspection checkpoint, id. at 563, 96 S.Ct. at 3085; United States v. Ray, 973 F.2d 840, 842" }, { "docid": "22666162", "title": "", "text": "are subject to seizure under the applicable criminal laws. In United States v. Brignoni-Ponce, supra, Border Patrol agents conducting roving patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. The practice was held to violate the Fourth Amendment, but the Court did not invalidate all warrantless automobile stops upon less than probable cause. Given “the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,” 422 U. S., at 881, the Court analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio, supra, and held: “Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” 422 U. S., at 884 (footnote omitted). Because “the nature of illegal alien trafile and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators,” id., at 883, “a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.” Ibid. The constitutionality of stops by Border Patrol agents was again before the Court in United States v. Martinez-Fuerte, supra, in which we addressed the permissibility of checkpoint operations. This practice involved slowing all oncoming traffic “to a virtual, if not a complete, halt,” 428 U. S., at 546, at a highway roadblock, and referring vehicles chosen at the discretion of Border Patrol agents to an area for secondary inspection. See id., at 546, 558. Recognizing that the governmental interest involved was the same as that furthered by roving-patrol stops, the Court nonetheless sustained the constitutionality of the Border Patrol’s checkpoint operations. The crucial distinction was the lesser intrusion upon the motorist’s Fourth Amendment interests: “[The] objective intrusion- —" }, { "docid": "18625012", "title": "", "text": "to a secondary checkpoint and further question the occupants on the basis of reasonable suspicion that a crime has been committed.\" Rubio-Rivera, 917 F.2d at 1276 (emphasis added) (citing Johnson, 895 F.2d at 696, 698). These statements of the law are not in conflict. A brief summary of relevant border checkpoint law is necessary in order to clarify Tenth Circuit law. A' detention at a border checkpoint is a seizure under the Fourth Amendment. Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct'. at 3082. However, because the public has a substantial interest in protecting the integrity of our national borders, and the intrusion upon one’s right to privacy and personal security by a routine border inspection is minimal, a border patrol agent may briefly detain and question an individual without any individualized suspicion as required under Terry v. Ohio. Martinez-Fuerte, 428 U.S. at 556-62, 96 S.Ct. at 3082-85. The Fourth Amendment protects an individual’s liberty at a border checkpoint by limiting the scope of the detention. Id. at 566-67, 96 S.Ct. at 3087. There are two statements of law in Martinez-Fuerte which are especially relevant to our discussion. First, the Supreme Court held- that border patrol agents may direct motorists from the primary inspection area to secondary without individualized suspicion and “have wide discretion in selecting the motorists to be diverted.” Id. at 563-64, 96 S.Ct. at 3085. Second, the Supreme Court held that border patrol agents were allowed to conduct a “routine checkpoint stop,” but “ ‘[a]ny further detention ... must be based on consent or probable cause.’ ” Id. at 567, 96 S.Ct. at 3087 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975)). A routine checkpoint stop must be brief and unintrusive. It generally involves questions concerning the motorist’s citizenship or immigratiqn status, and a request for documentation. Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083; United States v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). A cursory visual inspection of the vehicle is also routine, Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083, and a few brief" }, { "docid": "14183942", "title": "", "text": "the Court “has weighed the public interest against the Fourth Amendment interest of the individual.” 428 U.S. at 555, 96 S.Ct. at 3081. See also United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court then noted that the United States has a substantial interest in controlling the flow of illegal aliens. Carrying out a program of routine stops for brief questioning at permanent checkpoints is effective in support of this interest. 428 U.S. at 556, 96 S.Ct. at 3082. At the same time, routine stops involving brief questioning at permanent checkpoints create only a limited intrusion upon Fourth Amendment interests. This encroachment is limited both in terms of the individual motorist’s subjective sense of intrusion and in terms of overall interference with legitimate traffic. 428 U.S. at 559-560, 96 S.Ct. at 3083. The Court concluded that because of the substantial public interest in maintaining the checkpoints and because there is a minimal intrusion upon Fourth Amendment rights where reasonable procedures are used, stops for brief questioning routinely conducted at reasonably located permanent checkpoints are consistent with the Fourth Amendment and need not be based on indi vidualized suspicion, 428 U.S. at 561, 96 S.Ct. at 3084, nor authorized by warrant, 428 U.S. at 565, 96 S.Ct. at 3086. Ill In this case, Vasquez-Guerrero argues that the rule of Martinez-Fuerte does not apply because the checkpoint at Oak Grove is not “permanent” and is not “reasonably located.” Instead, he argues, the situation is analogous to a roving patrol stop. Under United States v. Brignoni-Ponce, supra, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, a roving patrol stop may be made if the patrolling officer is aware of specific articulable facts, together with rational inferences derived from those facts, that reasonably warrant a suspicion that a vehicle contains illegal aliens. Thus, Vasquez-Guerrero contends that the stop at Oak Grove was illegal, for the agent who effected the stop articulated no specific facts giving rise to a founded or reasonable" }, { "docid": "22409204", "title": "", "text": "they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” Id., at 884. We think that two later decisions also bear on the question before us. In United States v. Martinez-Fuerte, 428 U. S. 543 (1976), we upheld the authority of the Border Patrol to maintain permanent checkpoints at or near intersections of important roads leading away from the border at which a vehicle would be stopped for brief questioning of its occupants “even though there is no reason to believe the particular vehicle contains illegal aliens.” Id., at 545. Distinguishing our holding in United States v. Brignoni-Ponce, supra, we said: “A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.” 428 U. S., at 557. Three Terms later we held in Delaware v. Prouse, 440 U. S. 648 (1979), that “persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.” Id., at 663. We added that alternative methods, such as spot checks that involve less intrusion, or questioning of all oncoming traffic at roadblock-type stops, would just as readily accomplish the State’s objectives in furthering compliance with auto registration and safety laws. Our focus in this area of Fourth Amendment law has been on the question of the “reasonableness” of the type of governmental intrusion involved. “Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, supra, at 654. See also Camara v. Municipal Court," } ]

[ { "docid": "21344789", "title": "", "text": "STONE, Circuit Judge. This is a petition for review of an order of the Board of Tax Appeals affirming a ro-determination by the Commissioner of the income tax of petitioner for the year-1921. The only question presented hy this petition is whether or not the Board was right in its determination that the taxable year-of petitioner was a fiscal year ending May 31,1921, or was, as contended by petitioner, the calendar year 1921. Section 212(b) of the Revenue Act of 1921 (42 Stat. 227, 237) is, in part, as follows: “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the ease may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made upon such basis and in such manner as in the opinion of the Commissioner does clearly reflect the income. If * * * taxpayer has no annual accounting period * * * the net income shall be computed on the basis of the calendar year.” Following the statutory requirements of the above quotation, it is clear that, if this petitioner had an annual accounting period, either fiscal or calendar, and its method of accounting was such that this period clearly reflected the income, that period was mandatory. The question, therefore, is whether petitioner had such period clearly reflecting income in 1921. Obviously, this is a question purely of fact, and, since the determination of the Board on questions of fact cannot be disturbed if there is any substantial evidence to support such determination (Phillips v. Commissioner, 283 U. S. 589, 600, 51 S. Ct. 608, 75 L. Ed. 1289; Franciscus Realty Co. v. Commissioner, 39 F.(2d) 583, 584, this court; Kendrick Coal & Dock Co. v. Commissioner, 29 F.(2d) 559, 564, this court), the only matter before us is whether there was substantial evidence to support the determination of the Board that" } ]

[ { "docid": "688894", "title": "", "text": "*. If the change is from calendar year to fiscal year, a separate return shall be made * * 26 U.S.O.A. § 47(a). . Regulations 331, Section 29.46-1: “Change of Accounting Period. If a taxpayer (other than a subsidiary corporation required to change its accounting period by reason of the provisions of § 23.14 of this chapter or 26 CFR, 3943 Cum.Supp. 33.14) changes his accounting period he shall, prior to the expiration of 30 days from the close of the fractional part of the year for which a return would be required to effect the change, furnish to the collector, for transmission to the Commissioner, the information required on Form 1128. * * * If the change is approved by the Commissioner, the taxpayer shall thereafter make his returns and compute his net income upon the basis of the new accounting period.” By amendments in 1953, Regulations 118, Sec. 39.46-1, provided a blanket authorization for a change in accounting period in certain prescribed situations without express application and approval. 2 Merten’s op. cit. supra, Sec. 13.17. . See 2 Merten’s op. cit., supra, Section 1301 and particularly footnote 3; “The net income of a taxpayer who keeps no books must be computed on the basis of a calendar year even though the taxpayer is a member of a partnership which keeps its books and files its returns on a fiscal year basis. The books kept by the partnership are not the books of the individual partners. Max Freudmann, 10 T.C. 775; Klempner v. Glenn, D.C.W.D.Ky.1949, 82 F.Supp. 626. See, also, Irene Nunnery Theriot, 15 T.C. 912, affirmed Theriot v. Commissioner, 5 Cir., 1952, 197 F.2d 13, certiorari denied 1952, 344 U.S. 874, 73 S.Ct. 167, 97 L.Ed. 677, involving the unsuccessful claim of a wife domiciled in a community property state that tbe books kept for a business operated as an individual proprietorship by her husband were her individual books. “See Max H. Stryker, 36 BTA 326, holding that where the taxpayer, a member of a partnership, kept no books apart from the partnership books he was not entitled" }, { "docid": "23327531", "title": "", "text": "determined that the death of Samuel Mnookin terminated the partnership, so that respondent was required to accrue and include in the income tax return for Samuel Mnookin for the period January 1- to December 1,; 1943, the sum of $6,436.34, which the Commissioner determined to be Mnookin’s allocable share of the partnership profit from June 1 to December 1, 1943. The result of these determinations was the assessment of the deficiency in the amount stated above. 1. Following its decision in Greene Motor Company, 5 T.C. 314, the Tax Court ruled that the Commissioner erroneously included in Samuel Mnookin’s income for 1942, $103,456.73 representing credit sales which accrued and were shown on Mnookin’s books in prior years. Sections 41 and 42 ******of the Internal Revenue Code, 26 U. S.C.A. §§ 41, 42, and the Treasury Regulation pursuant thereto (§ 29.41-1, Regulations 111) require that a taxpayer’s net income must be computed on the basis of his annual accounting period which, in the case of decedent, was the calendar year; that if the method of accounting regularly employed by the taxpayer clearly reflects his income, as is conceded here, his income must be computed in accordance therewith. The taxpayer’s method of accounting will control the time as of which income must be reported and deductions allowed. The courts hold that neither income nor deductions may be taken out of the proper accounting period for the benefit of the Government or the taxpayer. Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 285, 287, 64 S.Ct. 596, 88 L.Ed. 725; Ross v. Commissioner, 1 Cir., 169 F.2d 483, 492, 7 A.L.R,2d 719. In this case there is no suggestion of fraud on the part of Mnookin. All that the evidence shows is mistake in the interpretation of the income tax law. In the years prior to 1942 Mnookin’s books were kept on the accrual basis. As so kept they correctly reflected his income for those years. The Commissioner having failed to assert the Government’s claims for deficiencies for the years prior to 1942 may not circumvent the statute of limitations barring the" }, { "docid": "6900012", "title": "", "text": "by the Commissioner was fair and equitable. The decision of the Tax Court is affirmed. . “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. If the taxpayer’s annual accounting period is other than a fiscal year as defined in section 48 or if the taxpayer has no annual accounting period or does not keep books, the net income shall be computed on the basis of the calendar year.” 26 U.S.C. § 41, 1952 Ed. . The completed contract and the percentage of completion methods of report-ting income from long term contracts are authorized and described in Regulation 111, § 29.42-4, promulgated under the Internal Revenue Code of 1939. . “The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of aecounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. * * * ” 26 U.S.C. § 42(a), 1952 Ed. . This same conclusion under somewhat parallel states oí fact has been reached by other Circuits and the Tax Court. Cf. Standard Paving Company v. Commissioner of Internal Revenue, 10 Cir., 190 F.2d 330, 332; Floyd v. Scofield, 5 Cir., 193 F.2d 594; Dillard-Waltermire, Inc. v. Campbell, 5 Cir., 255 F.2d 433; Carter v. Commissioner of Internal Revenue, 9 T.C. 364." }, { "docid": "688884", "title": "", "text": "Court also held that other mem-oranda and data kept by Taxpayer fell “short of being classified as ‘books’ within the meaning of Section 41 of the In ternal Revenue Code * * * Max H. Stryker v. Commissioner, 36 B.T.A. 326; Brooks v. Commissioner, 6 T.C. 504.” We think this case has a very narrow frame. That is because the question of the period of the accounting, unlike that of the method of accounting, admits of but two possibilities. The period of accounting under Section 41 of the Code and the applicable regulations may be either fiscal or calendar. It may not be both and it cannot be anything else. There are no hybrid periods of accounting. Once that period of accounting is fixed, its use is mandatory, so much so that i+ matters not that this allows a fortuitous loss or gain to taxpayer or Government. Great West Printing Co. v. Commissioner, 8 Cir., 60 F.2d 749; Jonas Cadillac Co. v. Commissioner, 7 Cir., 41 F.2d 141, affirming 16 B.T.A. 932; Helvering v. Brooklyn City R. Co., 2 Cir., 72 F.2d 274. The impact of this is graphically portrayed in American Hide & Leather Co. v. United States, 284 U.S. 343, 52 S.Ct. 154, 76 L.Ed. 331. The only escape from this inexorable fate is a change in accounting period with the approval of the Commissioner as the Code and the Regulations spell out so clearly. As such this inevitably involves history. Scripture and a tax accounting period must each have its Genesis. Here, rather than in the law as such, did the Court err. For “In the beginning” was not, as Commissioner urged and the Court found, the year 1945 when Taxpayer became the sole proprietor of this printing business. This was an event of importance which in his economic life and in relation to internal matters of Alabama law as dealt with the life and death of partnerships, probably had much significance. But Section 41 could no more take notice of this than it would permit Theriot, pledging his troth in the memorable words “All my worldly" }, { "docid": "13036782", "title": "", "text": "of F.R. Civ.P. 63, 28 U.S.C.A., see 7 Moore, Federal Practice § 63.05 at 1458; Makah Indian Tribe v. Schoettler, 9 Cir., 1951, 192 F.2d 224; Smith v. Dental Products Co., 7 Cir., 1948, 168 F.2d 516, 519; Federal Deposit Ins. Corp. v. Siraco, 2 Cir., 1949, 174 F.2d 360; Askania Werke, A. G. v. Helvering, 1938, 68 App.D.C. 315, 96 F.2d 717. The Government stresses Internal Revenue Code (1954) § 7444, 26 U.S.C.A. § 7444 (§ 1103 of the 1939 Code, 26 U.S. C.A. § 1103) ; § 7459, 26 U.S.C.A. § 7459 (§ 1117 of the 1939 Code, 26 U.S.C.A. § 1117); § 7453, 26 U.S.C.A. § 7453 (§ 1111 of the 1939 Code, 26 U.S.C.A. § 1111); § 7460, 26 U.S.C.A. § 7460 (§ 1118 of the 1939 Code, 26 U.S.C.A. § 1118) relating to the administrative organization and operation of the Tax Court. And it stresses the following cases: Davidson v. Commissioner, 5 Cir., 1937, 91 F.2d 516; Powell v. Commissioner, 1 Cir., 1938, 94 F.2d 483; Seaside Improvement Co. v. Commissioner, 2 Cir., 1939, 105 F.2d 990, 992, certiorari denied 308 U.S. 618, 60 S. Ct. 263, 84 L.Ed. 516; Halle v. Commissioner, 2 Cir., 1949, 175 F.2d 500, 504, certiorari denied 338 U.S. 949, 70 S.Ct. 485, 94 L.Ed. 586; Amoroso v. Commissioner, 1 Cir., 1952, 193 F.2d 583, 586, certiorari denied 343 U.S. 926, 72 S.Ct. 759, 96 L.Ed. 1337; Towers v. Commissioner, 2 Cir., 1957, 247 F.2d 233, 234-235, certiorari denied 355 U.S. 914, 78 S. Ct. 343, 2 L.Ed.2d 274; Shahadi v. Commissioner, 3 Cir., 1959, 266 F.2d 495, 501-502, certiorari denied 361 U.S. 874, 80 S.Ct. 137, 4 L.Ed.2d 113; Garden City Feeder Co. v. Commissioner, 8 Cir., 1935, 75 F.2d 804; Heim v. Commissioner, 8 Cir., 1958, 251 F.2d 44, 48. . “§ 41. General rule •‘The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if" }, { "docid": "688882", "title": "", "text": "JOHN R. BROWN, Circuit Judge. The sole question now for us in the Taxpayer’s consolidated suits for refund of income taxes is whether the District Court was right in holding that Taxpayer was on a fiscal, rather than a calendar, year period of accounting. The facts are stipulated and may be briefly capsulated. From 1941 on through all of the years here in dispute, Taxpayer, Robert S. Gill, filed his returns on a calendar year basis. From 1941 to 1945 he was a partner in the firm of Gill Printing and Stationery Company, a partnership which filed its returns and kept its books on the fiscal year period of accounting ending April 30 of each year. In July 1945, Taxpayer acquired the entire ownership of Gill Printing and Stationery Company and thereafter operated the Company as a sole proprietorship. He continued to close its books as of April 30 and continued to report on his calendar year returns income from the Company for the fiscal year ending in each calendar year. He made no change in his existing period of accounting. Taxpayer never sought, nor did the Commissioner of Internal Revenue ever give, approval at any time to change Taxpayer’s accounting period from the calendar year. The crux of this case is found in this portion of the Trial Court’s unreported memorandum decision: “Plaintiff [Taxpayer] was required to report his net income upon the basis of his annual accounting period in accordance with the method of accounting regularly employed in keeping his books pursuant to the provisions of Section 41 of the Internal Revenue Code of 1939 [26 U.S.C.A. § 41] and Treasury Regulations 111, Section 29.41-4. As [Taxpayer] kept the books of his business, the Gill Printing and Stationery Company, on a fiscal year period ending April 30th of each year involved in this action, and as [Taxpayer] kept no other books, he was required to report his income for a fiscal year period ending April 30th of each year. James H. Silcox v. Commissioner, 12 B.T.A. [748] 749; Charles E. Hires Co. v. Commissioner, 26 B.T.A. 1351.” The" }, { "docid": "15588177", "title": "", "text": "net operating loss deduction is the taxpayer who sustained the loss and therefore a successor corporation is not entitled to deduct the losses of its predecessor even though it had assumed all of the liabilities of the predecessor. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; Weber Flour Mills Co. v. Commissioner, 10 Cir., 82 F.2d 764; May Oil Burner Corp. v. Commissioner, 4 Cir., 71 F.2d 644; Shreveport Producing & Refining Co. v. Commissioner, 5 Cir., 71 F.2d 972, certiorari denied 293 U.S. 616, 55 S.Ct. 148, 79 L.Ed. 705; Athol Mfg. Co. v. Commissioner, 1 Cir., 54 F.2d 230; see also Anno. 9 A.L.R.2d 412. We think the rule applies conversely, which would prohibit Oklahoma Standard from deducting losses sustained by Delaware Standard. The decisions of the Tax Court are Affirmed. . Gruber Project: Tbe joint venture had received $2,209,845.96; Dalhart Project: $256,735.16; Memorial Boulevard Project: $81,249.37. . 26 U.S.C.A. § 41: “Tbe net income shall be computed upon tbe basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as tbe case may be) in accordance with tbe method of accounting regularly employed in keeping tbe books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. If the taxpayer’s annual accounting period is other than a fiscal year as defined in section 48 or if the taxpayer has no annual accounting period or does not keep books, the net income shall be computed on the basis of the calendar year.” . Gruber Project, 91.34%, Dalhart Project, 76.66%, Memorial Boulevard Project, 98.67%. These percentages were different from those used by the Commissioner in his determination but no change was made by the Tax Court in the method of accounting adopted by the Commissioner." }, { "docid": "2288694", "title": "", "text": "year from the date of execution of the contract to the date on which the contract is finally completed and accepted. * * *” Reg. Ill, § 29.42-4. The taxpayers urge that each lot purchaser had at all times prior to the final payment upon his installment contract an unqualified right to cancel his contract and receive a refund of all payments made. The Tax Court found no legal obligation binding the taxpayers to make refunds. It held that the installment payments were received without restriction and the taxpayers’ right to use them was absolute. These findings were not erroneous. Commissioner of Internal Revenue v. Union Pacific Railroad Co., 2 Cir., 1936, 86 F.2d 637; Commons v. Commissioner, 20 T.C. 900. See Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197; Healy v. Commissioner, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007. The provisions of Reg. Ill, § 29.42-4 do not apply to the type of transactions here involved. The contracts of the taxpayers for the sale of real estate are in no sense building, installation or construction contracts such as are within the terms of the quoted regulation. The method used by the taxpayers during the tax years under review had been used by the taxpayers during prior years without criticism or objection by the Commissioner. This is urged by the taxpayers as tantamount to approval by the Commissioner and that the accounting procedures followed for a period should not be changed. The Commissioner cannot be obligated to continue an erroneous method or, by acquiescence, waive for future years the discretionary power which the Congress has granted. Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725. The statutory provision, § 41, supra, giving to the Commissioner the authority to make computations by such method as in his opinion clearly reflects income is a grant of wide discretion, and his action may be challenged only upon a clear showing that he has abused his discretion." }, { "docid": "23327533", "title": "", "text": "Government’s claims simply because otherwise the income of Mnookin for years prior to 1942 will escape taxation. Ross v. Commissioner, supra; Countway v. Commissioner, 1 Cir., 127 F. 2d 69, 76. The discretion which the Commissioner has under section 41 of the Code to make such computations as will dearly reflect income does not empower him to add to the taxpayer’s gross income for a given year an item which rightfully belongs to an earlier year. The mistaken omission from income of an amount properly includible does not nullify the statute of limitations on assessment and collection of income taxes. Clifton Manufacturing Co. v. Commissioner, 4 Cir., 137 F.2d 290, 293, 150 A.L.R. 749. In the years prior to 1942 neither Samuel Mnookin nor the Commissioner had any choice as to the method of reporting taxpayer’s income tax required by law. For that reason neither the doctrine of election nor of estoppel is applicable on the facts in this case to sustain the Commissioner’s determination. Ross v. Commissioner, supra, 169 F.2d at page 493. The cases relied on by the Commissioner (William Hardy, Inc., v. Commissioner, 2 Cir., 82 F.2d 249; Schuman Carriage Co. v. Commissioner, 43 B.T.A. 880; Carver v. Commissioner, 10 T.C. 171, affirmed per curiam 6 Cir., 173 F.2d 29) are, as the Tax Court points out, distinguishable on the facts from the present case in that in the present case the taxpayer’s books were at all times kept on the proper basis and no changes in his method of accounting ever occurred or were required, and on the further ground that in these cases the statute of limitations was not involved. See Ross v. Commissioner, supra, 169 F.2d at page 489. 2. Following the decision of the Fifth Circuit in Henderson’s Estate v. Commissioner, 155 F.2d 310, 164 A.L.R. 1030, the Tax Court held that the Mnookin partnership did not end with the death of Samuel Mnookin on December 1, 1943, and for that reason the partnership gain for the period June 1 to December 1, 1943, was not includible in decedent’s income tax return for" }, { "docid": "13036783", "title": "", "text": "Commissioner, 2 Cir., 1939, 105 F.2d 990, 992, certiorari denied 308 U.S. 618, 60 S. Ct. 263, 84 L.Ed. 516; Halle v. Commissioner, 2 Cir., 1949, 175 F.2d 500, 504, certiorari denied 338 U.S. 949, 70 S.Ct. 485, 94 L.Ed. 586; Amoroso v. Commissioner, 1 Cir., 1952, 193 F.2d 583, 586, certiorari denied 343 U.S. 926, 72 S.Ct. 759, 96 L.Ed. 1337; Towers v. Commissioner, 2 Cir., 1957, 247 F.2d 233, 234-235, certiorari denied 355 U.S. 914, 78 S. Ct. 343, 2 L.Ed.2d 274; Shahadi v. Commissioner, 3 Cir., 1959, 266 F.2d 495, 501-502, certiorari denied 361 U.S. 874, 80 S.Ct. 137, 4 L.Ed.2d 113; Garden City Feeder Co. v. Commissioner, 8 Cir., 1935, 75 F.2d 804; Heim v. Commissioner, 8 Cir., 1958, 251 F.2d 44, 48. . “§ 41. General rule •‘The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * * ” 26 U.S. O.A. § 41 [1989 I.R.C.]. Somewhat related is § 54 of the 1939 Code, Records and Special returns: “(a) By taxpayer. Every person liable to any tax imposed by this chapter or for the collection thereof, shall keep such records, render under oath such statements, make such returns, and comply with such rules and regulations, as the Commissioner, with the approval of the Secretary, may from time to time prescribe.” 26 U.S.O.A. § 54 [1939 I.R.C.]. . Bryan v. Commissioner, 5 Cir., 1954, 209 F.2d 822, 826; Polizzi v. Commissioner, 6 Cir., 1959, 265 F.2d 498, 502; Thomas v. Commissioner, 1 Cir., 1956, 232 F. 2d 520, 525; Thomas v. Commissioner, 6 Cir., 1955, 223 F.2d 83. Both Thomas cases were approved and followed by this Court" }, { "docid": "5321521", "title": "", "text": "have thought the books correctly kept since no other adjustments were made by him to place the taxpayers on an accrual method of reporting income. The Commissioner asserts that his method of computation must be sustained on the authority of this court’s decision in William Hardy, Inc. v. Commissioner, 2 Cir., 82 F.2d 249. There the taxpayer had kept its books on the cash basis. It requested permission to change to the accrual method of accounting and reporting income for the year 1926. The Commissioner granted the bequest and also insisted that the 1925 return be recomputed on the same basis. He added an opening inventory to the 1925 income computed on the accrual basis. We held this to be within the discretion conferred upon him by section 41 of the Code. That case involved a change in the method of keeping the taxpayer’s books, not merely, as here, a change in the method of reporting income in the taxpayer’s return. Subsequent decisions of the Tax Court, two of which have been affirmed by Courts .of Appeals, have noted that distinction and limited the scope of the Hardy case to its pr.ecise facts. We agree that it should be so limited. Decision affirmed. . 26 U.S.C.A. §§ 22(c), 41; Treas.Reg. 111, §§ 29.22(c)-1, 29.41-2. . “§ 41. General rule. “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or' calendar year, as the case may be) in accordanee with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * * ”' . Greene Motor Co. v. Commissioner, 5 T.C. 314, acquiesced in by the Commissioner, 1945 Cum.Bull. 3. See also Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 285-6, 64 S.Ct. 596, 88 L.Ed. 725; Clifton Mfg. Co. v. Commissioner, 4 Cir.," }, { "docid": "5321522", "title": "", "text": ".of Appeals, have noted that distinction and limited the scope of the Hardy case to its pr.ecise facts. We agree that it should be so limited. Decision affirmed. . 26 U.S.C.A. §§ 22(c), 41; Treas.Reg. 111, §§ 29.22(c)-1, 29.41-2. . “§ 41. General rule. “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or' calendar year, as the case may be) in accordanee with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * * ”' . Greene Motor Co. v. Commissioner, 5 T.C. 314, acquiesced in by the Commissioner, 1945 Cum.Bull. 3. See also Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 285-6, 64 S.Ct. 596, 88 L.Ed. 725; Clifton Mfg. Co. v. Commissioner, 4 Cir., 137 F.2d 290, 293, 150 A.L.R. 749; Commissioner v. Mnookin’s Estate, 8 Cir., 184 F.2d 89, 93; Commissioner v. Frame, 16 T.C. 600, aff’d, per curiam, 3 Cir., 195 F.2d 166. . Commissioner v. Mnookin’s Estate, 8 Cir., 184 F.2d 89; Frame v. Commissioner, 16 T.C. 600, affirmed per curiam by the Third Circuit, 195 F.2d 166; contra, Carver v. Commissioner, 6 Cir., 173 F.2d 29. A very thorough and excellent discussion of all the authorities may be found in Judge Graven’s opinion in Welp v. United States, D.C.N.D.Iowa, 103 F.Supp. 551." }, { "docid": "20625873", "title": "", "text": "the proceeding, including the stipulation of facts, opening argument, and presentation of the case.\" . Neither case law nor legislative history is helpful upon this proposition. We are cited only to cases of the Tax Court, which appears to have divided on this proposition. The following cases appear to uphold the proposition asserted by the commissioner here: Houston Chronical Publishing Company, 1944, 3 T.C. 1233; New York Water Service Corporation, 1949, 12 T.C. 780; H. Wolff Book Manufacturing Company, 19 P-H Tax Ct. Mem. 903 (1950). The following cases appear contra: Stockton Morris Plan Company, 12 P-H Tax Ct. Mem. 1025 (1943); and R. Gsell Company v. Commissioner of Internal Revenue, 34 T.C. 41, reversed on other grounds, 291 F.2d 324 (2d Cir., 1961). See testimony of Dr. Adams in, Hearings before Senate Committee on Finance, 67th Congress, 1st Session, 52,3 (1921). . The Tax Court in its opinion in this case has recognized this in the following language : “While the reasonableness of an addition to the reserve ordinarily will be judged in the light of the taxpayer’s experience in collecting its accounts, no hard and fast standard should be adopted. A formula which may have produced a reasonable addition over a series of years might very well prove inadequate under the circumstances attendant upon the year involved. Black Motor Co., 41 B.T.A. 300 (1940), affd. 125 F.2d 977 (C.A. 6, 1942). In the final analysis, the estimate as to the reserve required for any given year will be measured in light of the conditions which exist at the time the estimate is made.” . \"If the aging method is used, accounts may not appear to be uncollectible until a date subsequent to the period of sale; in that case the loss, or the provision therefor, will not be charged to income until a period subsequent to that of the sale. Thus, one period will get the eredit for the income and a later period will get the charge for the loss.” Finney & Miller, Principles of Accounting, Intermediate, 209 (5th Ed., 1958). , For example, the aging of" }, { "docid": "688883", "title": "", "text": "in his existing period of accounting. Taxpayer never sought, nor did the Commissioner of Internal Revenue ever give, approval at any time to change Taxpayer’s accounting period from the calendar year. The crux of this case is found in this portion of the Trial Court’s unreported memorandum decision: “Plaintiff [Taxpayer] was required to report his net income upon the basis of his annual accounting period in accordance with the method of accounting regularly employed in keeping his books pursuant to the provisions of Section 41 of the Internal Revenue Code of 1939 [26 U.S.C.A. § 41] and Treasury Regulations 111, Section 29.41-4. As [Taxpayer] kept the books of his business, the Gill Printing and Stationery Company, on a fiscal year period ending April 30th of each year involved in this action, and as [Taxpayer] kept no other books, he was required to report his income for a fiscal year period ending April 30th of each year. James H. Silcox v. Commissioner, 12 B.T.A. [748] 749; Charles E. Hires Co. v. Commissioner, 26 B.T.A. 1351.” The Court also held that other mem-oranda and data kept by Taxpayer fell “short of being classified as ‘books’ within the meaning of Section 41 of the In ternal Revenue Code * * * Max H. Stryker v. Commissioner, 36 B.T.A. 326; Brooks v. Commissioner, 6 T.C. 504.” We think this case has a very narrow frame. That is because the question of the period of the accounting, unlike that of the method of accounting, admits of but two possibilities. The period of accounting under Section 41 of the Code and the applicable regulations may be either fiscal or calendar. It may not be both and it cannot be anything else. There are no hybrid periods of accounting. Once that period of accounting is fixed, its use is mandatory, so much so that i+ matters not that this allows a fortuitous loss or gain to taxpayer or Government. Great West Printing Co. v. Commissioner, 8 Cir., 60 F.2d 749; Jonas Cadillac Co. v. Commissioner, 7 Cir., 41 F.2d 141, affirming 16 B.T.A. 932; Helvering v. Brooklyn" }, { "docid": "688895", "title": "", "text": "Sec. 13.17. . See 2 Merten’s op. cit., supra, Section 1301 and particularly footnote 3; “The net income of a taxpayer who keeps no books must be computed on the basis of a calendar year even though the taxpayer is a member of a partnership which keeps its books and files its returns on a fiscal year basis. The books kept by the partnership are not the books of the individual partners. Max Freudmann, 10 T.C. 775; Klempner v. Glenn, D.C.W.D.Ky.1949, 82 F.Supp. 626. See, also, Irene Nunnery Theriot, 15 T.C. 912, affirmed Theriot v. Commissioner, 5 Cir., 1952, 197 F.2d 13, certiorari denied 1952, 344 U.S. 874, 73 S.Ct. 167, 97 L.Ed. 677, involving the unsuccessful claim of a wife domiciled in a community property state that tbe books kept for a business operated as an individual proprietorship by her husband were her individual books. “See Max H. Stryker, 36 BTA 326, holding that where the taxpayer, a member of a partnership, kept no books apart from the partnership books he was not entitled to change his accounting period from the calendar to a fiscal year basis coinciding with that of the partnership.” . The Commissioner may not impose adjustments which change the tax status of income as previously existing to a different year. Commissioner of Internal Rvenue v. Mnookin’s Estate, 8 Cir., 184 F.2d 89; Welp v. Commissioner, 8 Cir., 201 F.2d 128; Goodrich v. Commissioner, 8 Cir., 243 F.2d 686; Commissioner of Internal Revenue v. Dwyer, 2 Cir., 203 F.2d 522; Commissioner of Internal Revenue v. Frame, 3 Cir., 195 F.2d 166; and see, Patchen v. Commissioner, 5 Cir., 258 F.2d 544. . The parties stipulated that in the event the Court were to hold that Taxpayer’s accounting period was a calendar year, the amount of refund is to be computed by the parties subject to determination by the Court in the event of disagreement. This will comprehend, to the extent applicable and heretofore raised, the collateral matters of limitations, determination or over-assessments and the like." }, { "docid": "688885", "title": "", "text": "City R. Co., 2 Cir., 72 F.2d 274. The impact of this is graphically portrayed in American Hide & Leather Co. v. United States, 284 U.S. 343, 52 S.Ct. 154, 76 L.Ed. 331. The only escape from this inexorable fate is a change in accounting period with the approval of the Commissioner as the Code and the Regulations spell out so clearly. As such this inevitably involves history. Scripture and a tax accounting period must each have its Genesis. Here, rather than in the law as such, did the Court err. For “In the beginning” was not, as Commissioner urged and the Court found, the year 1945 when Taxpayer became the sole proprietor of this printing business. This was an event of importance which in his economic life and in relation to internal matters of Alabama law as dealt with the life and death of partnerships, probably had much significance. But Section 41 could no more take notice of this than it would permit Theriot, pledging his troth in the memorable words “All my worldly goods I thee endow,” to invest his bride with his fiscal year. Theriot v. Commissioner, 5 Cir., 197 F.2d 13, certiorari denied 344 U.S. 874, 73 S.Ct. 167, 97 L.Ed. 677. “In the beginning” as it is here engraved upon the stipulated tablets of stone was 1941. Accepting the Commissioner’s contention that his “other mem-oranda records,” note 1, supra, were not books, this made him a calendar year taxpayer. The fact that he was a partner in a partnership reporting on a fiscal year did not make this either his fiscal year or give the partnership fiscal year books the status of his own accounts. And, as the Commissioner so strenuously agrees, he did “not keep books.” That brought into play the automatic provision of Section 41 and all of its predecessors that in such event “ * * * net income shall be computed on the basis of the calendar year.” And this he did, regularly and methodically as each year rolled around. That these calendar year returns filed regularly from 1941 up to" }, { "docid": "9407943", "title": "", "text": "States, 367 U.S. 687, 693, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961). This is because the goals of balance-sheet and income-tax accounting are not identical. Mr. Justice Clark, in American Automobile Association v. United States, supra, speaking of the accounting system before the Court, said that it “presents a rather accurate image of the total financial structure, but fails to respect the criteria of annual tax accounting and may be rejected by the Commissioner.” 367 U.S. at 692, 81 S.Ct. at 1730. The criteria referred to were stated by Mr. Justice Brandéis in Lucas v. Kansas City Structural Steel Co., 281 U.S. 264, 268, 50 S.Ct. 263, 265, 74 L.Ed. 848 (1930): “The Federal income tax system is based upon an annual accounting period. This requires that gains or losses be accounted for in the year in which they are realized. The purpose of the inventories is to assign to each period its profits and losses.” Whether a given method of accounting clearly reflects income is a question of fact. Artnell Co. v. Commissioner, 400 F.2d 981, 983-985 (7th Cir. 1968). As the Supreme Court has stated, it is not our role, in reviewing the Commissioner’s exercise of his discretion, “to weigh and determine the relative merits of systems of accounting.” Brown v. Helvering, supra, 291 U.S. at 204-205, 54 S.Ct. at 361. Thus, in order to overturn the Commissioner’s disallowance, the taxpayer must show that the Commissioner’s act was “plainly arbitrary.” Lucas v. Kansas City Structural Steel Co., supra, 281 U.S. at 271, 50 S.Ct. 263; Bangor Punta Operations, Inc. v. United States, supra, 466 F.2d at 935. C. The Tax Court held in this case that under § 471 of the Internal Revenue Code of 1954 the Secretary is to prescribe the methods by which inventories are to be taken, and that the Treasury Regulations set forth those methods. While the court found that Thor’s write-downs of excess inventory constituted a “best accounting practice” within the terms of the statute, it also held, without elaboration, that Thor had failed to establish that its inventory accounting clearly reflected its" }, { "docid": "20054836", "title": "", "text": "of cost or market and the $l-per-unit value, or $2,509,646.97, would have made 1953 income that much greater and 1954 income, as determined by the respondent, that much less. Income that belonged in 1953 cannot be taxed in 1954 simply because the Government will lose the 1953 tax. Burnet v. Sanford & Brooks Co., 282 U.S. 359; United States v. Lewis, 340 U.S. 590; Commissioner v. Mnookin’s Estate, 184 F. 2d 89 (C.A. 8, 1950), affirming 12 T.C. 744; Commissioner v. Frame, 195 F. 2d 166 (C.A. 3, 1952), affirming per curiam 16 T.C. 600; Commissioner v. Schuyler, supra. See also Virginian Hotel Corporation of Lynchburg v. Helvering, supra. We quote from the Schuyler case as follows: For the taxable year 1947, the Commissioner required tbe taxpayers to change from the cash basis of reporting income to the accrual basis, on which their books were kept, and included in gross income the closing inventory of the year but disallowed the deduction of the opening inventory. The Tax Court permitted the taxpayers to deduct the opening inventory. The correctness of this ruling is the sole question presented. The facts are undisputed. * * * For the calendar year 1947 the opening inventory was $5,048.86 and the ending inventory was $5,010.85. * * * Section 41 of the Code * * * requires (1) the income to be computed “upon the basis of the taxpayer’s annual accounting period,” and (2) “in accordance with the method of accounting regularly employed in keeping the books of such taxpayer.” It also provides (3) that if the method employed does not clearly reflect income, “the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect income.” It should be noted that in the case at bar the Commissioner did not require the taxpayers to change the method regularly employed in keeping their books, but only their method of reporting income for taxation. He takes the position that in changing from a cash to an accrual method of reporting income it is necessary in the first year of" }, { "docid": "809451", "title": "", "text": "the partnership’s clients may not have been billed for the jobs to which such expenses related until a subsequent year. There is no provision in the Code permitting the postponement, by an accrual basis taxpayer, of the deduction of expenses from one year to another in order to obtain a precise matching of income and expenses * * . “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such methods as in the opinion of the Commissioner does clearly reflect income. * * * ” 26 U.S.C.A. § 41. . To this statement the Tax Court then listed these cases in support of the holding: Charles D. Mifflin, 1955, 24 T.C. 973; Melvin B. Tunningley, 1954, 22 T.C. 1108; Deakman-Wells Co., 1953, 20 T.C. 610, reversed on other grounds 3 Cir., 1954, 213 F.2d 894; Bradstreet Co. of Maine, 1931, 23 B.T.A. 1093, reversed on other grounds 1 Cir., 1933, 65 F.2d 943; Louis Kamper, 1928, 14 B.T.A. 767; Ribbon Cliff Fruit Co., 1928, 12 B.T.A. 13. . Regulations 111, Sec. 29.41-2, “Bases of computation and changes in accounting methods * * * “The true income, computed under the Internal Revenue Code and, if the taxpayer keeps books of account, in accordance with the method of accounting regularly employed in keeping such books (provided the method so used is properly applicable in determining- the net income of the taxpayer for purposes of taxation), shall in all cases be entered on the return * * * “A taxpayer who changes the method of accounting employed in keeping his books shall, before computing his income upon such new method for purposes of taxation, secure the consent of the Commissioner. * * * The application shall be accompanied by a statement" }, { "docid": "23580633", "title": "", "text": "Such an application of the rule requires the taxpayer to report its prepaid income on a cash basis and to accrue its deductions. It creates a hybrid bookkeeping system and results in a tax return which does not clearly reflect income. Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831. To a large extent, it destroys the principle inherent in the accrual method of accounting. Plainly, Section 42 contemplates that prepaid sums can be returned in a year other than when received. It says that income shall be included in the taxable year received, “unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period.” This is not a case where the Commissioner has exercised his broad discretion to require a taxpayer to adopt an accounting method which will clearly reflect income, but is one in which he has improperly applied a legal principle. Congress has taken cognizance of the existing situation as to prepaid income and has sought to remedy it by statute. The 1954 Internal Revenue Code, with certain limitations, permits accrual basis taxpayers to defer the reporting of advanced payments as income until the year, or years, in which, under the taxpayer’s regular method of accounting, the income is earned and to assure that items of income and deductions will be properly taken into account. The Commissioner urges that since the taxpayer had for years prior to 1943 and 1944 carried these accounts on its books as cash items, it cannot change its system of accounting without the consent of the Commissioner. Treasury Regulations 111, Sec. 29.41-2. The Commissioner is vested with wide discretion in determining whether a change in a taxpayer’s method of accounting shall be allowed. Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Aluminum Castings Co. v. Routzahn, supra; United States v. Anderson, supra; United States v. American Can Co., 280 U.S. 412, 50 S.Ct. 177, 74 L.Ed. 518; Niles Bement Pond Co. v. United States, supra. The taxpayer, however, did" } ]

[ { "docid": "17095883", "title": "", "text": "claim, at least for declaratory relief. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). The action that Doe challenges — the State’s denial of his request for more than sixty days of benefits for private psychiatric hospitalization — ended when Doe ceased to be hospitalized. As Doe’s counsel informed us at oral argument, Doe now seeks not the immediate payment of benefits, but declaratory and injunctive relief concerning future repetition of the events underlying this lawsuit. In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam), the Supreme Court set out the standards by which we are to rule upon the mootness of such a claim: Sosna [v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975),] decided that in the absence of a class action, the “capable of repetition, yet evading review” doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. 423 U.S. at 149, 96 S.Ct. at 349. Here, the challenged action, which ended with Doe’s discharge from hospitalization, was “in its duration too short to be fully litigated prior to its cessation or expiration.” And Doe’s psychiatric history creates “a reasonable expectation that the same complaining party [will] be subjected to the same action again.” In Weinstein the Court found no such expectation, for the complaining party, who was challenging parole procedures, had been released from supervision and could not point to a “demonstrated probability” of his future return to the parole system. 423 U.S. at 149, 96 S.Ct. 347. Doe’s psychiatric history, on the other hand, does argue for a “demonstrated probability” of his return to mental hospitals. At various times in the past several years, Doe has been in treatment at the Philadelphia Psychiatric Center. He has also been a patient at Lankenau Hospital. Doe has" } ]

[ { "docid": "18438596", "title": "", "text": "S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974). Nor can plaintiff rely on the judicially created exception to the article III standing requirement by arguing that his claim is “capable of repetition yet evading review.” Invocation of that exception has consistently been limited by the Supreme Court to cases where two elements are combined: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. The instant case, not a class action, clearly does not satisfy the latter element.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); see also Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). While there is no doubt that § 49-b would again work its allegedly adverse effect upon plaintiff should he subsequently become unemployed, the record contains no support upon which to ground such speculation. Even were plaintiff to assert that he again could face unemployment, this assertion would “hardly [be] a substitute for evidence that this is a prospect of ‘immediacy and reality,’ ” Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), and “does not create the actual controversy that must exist for a declaratory judgment to be entered.” City of Los Angeles v. Lyons, 461 U.S. 95, -, 103 S.Ct. 1660, 1667, 75 L.Ed.2d 675 (1983). “[S]uch speculation is insufficient to establish the existence of a present, live controversy.” Id. (quoting Ashcroft v. Mattis, 431 U.S. 171, 172-73 n. 2, 97 S.Ct. 1739, 1740 n. 2, 52 L.Ed.2d 219 (1977)). Plaintiffs standing would perhaps fare better were he to allege a propensity for recurring bouts of unemployment, for example, were his occupation one of a seasonal or cyclical nature, cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (plaintiff employer, engaged in cyclically recurring bargaining with union challenging state’s policy of paying unemployment benefits to strikers, has standing)," }, { "docid": "22891095", "title": "", "text": "the petition, the record does not establish any connection between this confinement and the probation conditions. There is no indication that Cervantes or his belongings were ever subjected to a search pursuant to the probation conditions. We have found no collateral consequences which could ensue from such expired conditions, nor were any identified by Cervantes. Nor do we believe the mootness barrier is overcome by designating the questioned probation condition as one “ ‘capable of repetition, yet evading review’, ” see Sosna v. Iowa, 419 U.S. 393, 399-400, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam), Bradford contended that, under the Fourteenth Amendment, he was entitled to certain procedural rights in the determination of his parole eligibility. While the case was pending before the Supreme Court, mootness was suggested because he was already paroled. In rejecting the “ ‘capable of repetition, yet evading review’ ” doctrine, the Court said Sosna had limited the applicability of the doctrine “to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. at 149, 96 S.Ct. at 349. Based upon the record before us, we find that Cervantes qualifies under neither. The three-year period of probation was not demonstrated to be too short to fully litigate the issue, and there is no indication that Cervantes will receive the same probation condition in the future. Similarly, the record does not show that the three-year period of the conditions leaves Cervantes “utterly remediless and defenseless against repetitions of unconstitutional conduct,” Sibron v. New York, 392 U.S. 40, 53, 88 S.Ct. 1889, 1897, 20 L.Ed.2d 917 (1968). The record does show that six months elapsed between the denial of Cervantes-’ petition for hearing by the California Supreme Court and the filing of the petition for a writ of habeas corpus in the district court." }, { "docid": "18438595", "title": "", "text": "147 (1973) (“The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated”); United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950). Although plaintiff does possess standing to press his claim for any damages suffered from the statute’s application, this Court concludes that any claim for injunctive or declaratory relief has been rendered moot by plaintiff’s return to work. The now familiar requirement that those who seek to invoke the jurisdiction of the federal courts must satisfy the prerequisite imposed by article III of the Constitution by alleging an actual case or controversy, Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968), remains unfulfilled in this case. “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse affects.” O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974). Nor can plaintiff rely on the judicially created exception to the article III standing requirement by arguing that his claim is “capable of repetition yet evading review.” Invocation of that exception has consistently been limited by the Supreme Court to cases where two elements are combined: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. The instant case, not a class action, clearly does not satisfy the latter element.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); see also Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). While there is no doubt that § 49-b would again work its allegedly adverse effect upon plaintiff should he subsequently become unemployed, the record contains no support upon which to ground such speculation. Even were plaintiff to assert" }, { "docid": "3891258", "title": "", "text": "would be issuing “an opinion advising what the law would be upon a hypothetical state of facts.” Lewis v. Continental Bank Corp., — U.S. -, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990) (quoting Rice, 404 U.S. at 246, 92 S.Ct. at 404). It is of no consequence that the controversy was live at earlier stages in this case; it must be live when we decide the issues. 110 S.Ct. at 1253. While the parties may have an interest in the review-ability of similar Corps actions that may be taken in the future, our opinion on federal judicial power in such a situation must wait for the day when such actions are challenged. We are mindful of the exception to the mootness doctrine for cases “capable of repetition, yet evading review,” first enunciated by the Supreme Court in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974) (short-term governmental action challenged by adversely affected party calls for analysis of applicability of exception). We must find the presence of two factors before the exception may be applied: (1) the Corps’ action must be “in its duration too short to be fully litigated prior to its cessation or expiration,” and (2) there must be a “reasonable expectation” that the appellee states will be “subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). Neither of these factors is present here. As to the first factor, this case was fully litigated in the District Court and in this Court before the end of the spawning season in late May or early June, even though the Upper Basin states did not commence this lawsuit until May 4, 1990. There is no apparent reason why similar future action by the Corps could not be fully litigated before its cessation or expiration. Indeed, the need in this case for a preliminary injunction, an emergency stay, and an" }, { "docid": "7857986", "title": "", "text": "President shall be appealable to the General Executive Board pursuant to the provisions of Article VI, Section 2 of the International Constitution. IBT Const., Art. XXII, Section 5(a) (emphasis .added). Felice’s precise grievance was that both Local 30 and the Board had improperly determined that he was ineligible to run for union office. Given the nature of Felice’s grievance and the express, mandatory pte -election method (“shall appeal”) of seeking redress of eligibility challenges provided by the IBT Constitution quoted above, we hold that Felice exhausted his remedies available under the IBT Constitution for the purposes of section 482(a) by employing the procedures prescribed in the IBT Constitution. We conclude, therefore, that the dis- triet court properly exercised jurisdiction over this case under 29 U.S.C. § 482(b). B. Having resolved the exhaustion issue, we must next consider mootness. We requested that 'the parties submit post-argument briefs addressing whether this matter is moot in light of Felice’s loss in the Union’s February 1992 special election, held under •the Secretary’s supervision. We consider questions of mootness under a plenary standard of review. Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.1987). The Supreme Court has ruled that “in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam), citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1974). It is clear that Wein-stein’s first element is satisfied here. The district court’s order granting summary judgment to the Secretary was entered on October 22, 1991. The supervised election was held in February 1992. We heard argument on this .appeal on May 15, 1992. In addition, the LMRDA section 402(d), 29 U.S.C. § 482(d), dictates that “an" }, { "docid": "21541803", "title": "", "text": "of (and the issues involved in) an accrued-benefits claim and of a veteran’s underlying disability-compensation claim as well as the function of this Court not as an initial trier of facts but as a reviewer of fact determinations made by the Board. Id. at 48. The Court is not persuaded by the arguments of the appellant’s counsel proposing the overruling of Landicho. The appellant’s counsel contends that the question whether the appellant’s emphysema was service connected is an issue capable of repetition yet evading review and that the case is thus, contrary to the holding of Landicho, not moot. Counsel asserts that “it is highly likely that many ... veterans needing to appeal denial of service connection for emphysema will not live to obtain a decision on appeal”. Resp. at 7. In the absence of a class action (see Lefkowitz v. Derwinski, 1 Vet.App. 439, 440 (1991) (en banc order) (denying petition to establish a class action procedure in this Court)), two conditions must be satisfied in order to qualify under the “capable of repetition, yet evading review” exception to the mootness doctrine: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Rife v. Brown, 7 Vet.App. 340, 341 (1994) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam)). “Alternatively, as to the second condition, the petitioner must show ‘the existence of an immediate governmental action or policy that has adversely affected and continues to affect a present interest.’ ” Rife, 7 Vet.App. at 341 (quoting Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-26, 94 S.Ct. 1694, 1700, 40 L.Ed.2d 1 (1974)). As to the first requirement (that VA’s denial of a claim for service connection for emphysema will evade review due to time restraints), there has been no showing that proper processing will not occur with respect to an RO’s decision on a claim for service connection" }, { "docid": "23676585", "title": "", "text": "injunctive relief, however, is moot because he is no longer in pretrial detention. Slade seeks to avoid this conclusion by urging that his case is one that is “capable of repetition yet evading review.” The Supreme Court has explained that, “in the absence of a class action, the ‘capable of repetition, yet evading review1 doctrine [is] limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam). In cases involving pretrial detention, the first inquiry is easily answered in Slade’s favor. “Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.” Gerstein v. Pugh, 420 U.S. 103, 111 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Slade’s claim therefore evades review. Thus, our mootness inquiry into Slade’s injunctive relief claim hinges on whether there is a reasonable expectation that Slade will be subject to the same action in the future. “[This] standard is not ‘mathematically precise’ and requires only a ‘reasonable likelihood’ of repetition.” Oliver v. Scott, 276 F.3d 736, 741 (5th Cir.2002) (quoting Honig v. Doe, 484 U.S. 305, 318-19, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court held that a challenge to parole revocation proceedings was moot because the plaintiff was no longer on parole. Id. at 14-16, 118 S.Ct. 978. In so finding, the Court rejected the possible risk of future apprehension and conviction as meeting the “capable of repetition” prong. The Court noted, “we are ... unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws." }, { "docid": "8164003", "title": "", "text": "it has sufficient substantiality, immediacy and reality to merit a declaratory judgment. Our conclusion is buttressed by the fact that both parties argued in the lower court that the action should not be dismissed as moot. Even if the viability of the State’s claim rested solely on the representation election that has been the primary focus of this controversy, the case would avoid mootness because of the presence of an issue “ ‘capa ble of repetition, yet evading review.’ ” In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam), the Supreme Court enlarged upon this doctrine as construed in Sosna v. Iowa, 419 U.S. at 399—400, 95 S.Ct. at 557: Sosna decided that in the absence of a class action, the “capable of repetition, yet evading review” doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 423 U.S. at 149, 96 S.Ct. at 349. Both of the criteria above are satisfied in the present case. The representation election was over before the district court could reach the merits of the State’s challenge to the NLRB order directing the election, and, given the breadth of the Board’s assertion of jurisdiction, there is certainly a reasonable expectation that the State’s alleged interest in the jai alai industry will be threatened by such orders in the future. In Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), the Supreme Court held that the “capable of repetition, yet evading review” exception to the mootness doctrine applied where an employer challenged state regulations according benefits to striking workers even though the particular strike that gave rise to the action had ended. Here, as in Super Tire, “the challenged governmental activity ... is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts" }, { "docid": "7521293", "title": "", "text": "upon hypothetical state of facts). Withal, a matter may not be moot, provided it is “capable of repetition, yet evading review.” See, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In the absence of a class action, however, this exception to the mootness doctrine requires two predicates: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam) (emphasis added). Thus, “[t]he possibility that other persons may litigate a similar claim does not save [a] case from mootness.” Lane v. Williams, 455 U.S. 624, 634, 102 S.Ct. 1322, 1328, 71 L.Ed.2d 508 (1982) (emphasis added). The defendants’ contention is that, upon its finding that subject matter juris- diction was lacking, the district court should have dismissed the action rather than referring it to state court. The possibility that the defendants will someday find themselves in the same situation is so remote that this is not a case “capable of repetition, yet evading review”; hence, the second element of the Weinstein v. Bradford test cannot be met. Cf. DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974) (per curiam) (petitioner will never again run the gantlet of law school admission process); Flynt v. Weinberger, 762 F.2d 134, 135 (D.C.Cir. 1985) (per curiam) (no “reasonable expectation” that controversy regarding prohibition of press coverage of Grenada invasion would recur). Accordingly, the cross-appeals, insofar as they challenge the referral of the federal action to state court, must be dismissed as moot, and we express no view on the propriety of the referral. IV. Conclusion Insofar as the district court held that subject matter jurisdiction was lacking and thereafter declined to enter separate judgments in favor of" }, { "docid": "5815652", "title": "", "text": "in a certain way, and then qualify the answer with an explanation of his subsequent acquittal, is not a legal collateral consequence. Legal collateral consequences as used in Sibron relate to consequences “imposed on the basis of the challenged conviction.” 392 U.S. at 57, 88 S.Ct. at 1900. However, Arnold has already successfully challenged his conviction in the state courts. Arnold next relies on Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), for supporting his argument that his cause is not moot. In Bradford, a prisoner claimed that a state was obligated to provide him certain procedural rights in considering his eligibility for parole. Before the case was argued before the Court, the prisoner received a complete release and thus had no further interest in the controverted state procedures. As in the present case, the party seeking to avoid mootness relied on the “capable of repetition, yet evading review” doctrine. The Court, applying the test of Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), noted that, in the absence of a certified class, this doctrine is “limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Bradford, supra, 423 U.S. at 149, 96 S.Ct. at 349. Neither element is found in Arnold’s case. It is true that Arnold’s license was suspended for less than three months. However, the shortness of the period was due to the fact that Arnold was eventually cleared. A full one-year revocation would provide enough time to'litigate this issue. See Le-Roy, supra. Furthermore, where the driver is never cleared, and thus the conviction remains, the “collateral consequences,” which Arnold lacks, would still be present. Nor is there a reasonable expectation that Arnold will again be subject to the alleged unconstitutional statutory procedure. Arnold would have to be again arrested for drunken driving, and he has provided no evidence" }, { "docid": "10767775", "title": "", "text": "after all procedures of the Railway Labor Act have been exhausted, provided the Company shall submit to the Union, when requested, proof that a particular flight is being flown or operated under charter or contract to the Department of Defense. . The contracts between TIA and its flight attendants, engineers, and pilots contain the same military no-strike clause which is discussed at greater length below. . Moreover, even were there no possibility of damages recovery in the further district court proceedings, this appeal probably would not be moot under the “capable of repetition, yet evading review” standard as elaborated in recent cases such as Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), and Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), Amalgamated Transit Union v. Greyhound Lines, Inc., 550 F.2d 1237, 1238 n.1 (9th Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 127, 54 L.Ed.2d 99 (1977), and Bituminous Coal Operators’ Association, Inc. v. U. M. W., 585 F.2d 586, 599-600 (3d Cir. 1978). Under these cases, a challenged action is not moot when: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there (is) a reasonable expectation that the same complaining party would be subjected to the same action again. The first prong of this test is met, as this strike ended before its legality could be fully litigated. As the Court has noted, “[T]he great majority of economic strikes do not last long enough for complete judicial review of the controversies they engender.” Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 126, 94 S.Ct. 1694, 1700, 40 L.Ed.2d 1 (1974). There is also a reasonable expectation the same complaining parties will take similar action again. The September, 1977, strike was not the first strike of TIA by the Teamsters. In July of 1974, TIA’s flight attendants and flight crewmembers, both represented by" }, { "docid": "946559", "title": "", "text": "and that it ought not to be able to defeat, by short term orders issued from time to time, the judicial construction of its orders which affected both the government and a carrier. The Court also mentioned the rights of the public which the government had endeavored to procure by the judgment of a court. Following Southern Pacific Terminal, numerous cases have considered the “capable of repetition, yet evading review,” rule. The ones which immediately concern us are Sos-na v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). Sosna did not involve a labor union, rather holding not moot a claim contesting the validity of an Iowa divorce residency statute where a class of plaintiffs had been certified although the named plaintiff had completed her residency and, indeed, been divorced elsewhere. The significance of Sosna to this opinion is that it is construed in Weinstein v. Bradford (a prisoner’s rights case) in the context of application of the “capable of repetition, yet evading review,” doctrine. The doctrine is there construed as limited to a situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. The second part of that standard is not substantially different from the one applied by us only shortly before in Linkenhoker v. Weinberger, 529 F.2d 51, 52-53 (4th Cir. 1975). The complaint in case No. 76-1785 (Local 1766) charges that the unions have for a long time past followed a pattern and practice of refusing to submit arbitrable disputes or differences to peaceful settlement through the grievance and arbitration procedures provided by said contracts and have repeatedly engaged in strike and work stoppages with an object to forcing and requiring Cedar and other signatory operators to settle such disputes and differences in accordance with the demands of the unions and in violation of said" }, { "docid": "22928921", "title": "", "text": "payment of compensation as required by this chapter, an injured employee ... may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. . The oft-cited doctrinal formula is found in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam), where it was held that an injury is capable of repetition, yet evades review if: (1) the challenged action was of limited duration, too short to be fully litigated prior to its cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. This formulation is of relevance only in the absence of a class-action suit. See Planned Parent, of C. & N. Ariz. v. State of Ariz., 718 F.2d 938, 949 (9th Cir.1983). Neither this case nor those discussed below involved class action. . Examples include Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (no more than hypothetical possibility that plaintiffs' individual rights would be violated by un constitutional police action in future) and O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (discriminatory bail, sentencing and costs practices challenged; no standing because possibility that plaintiffs would later violate law too remote). These cases require that a plaintiff establish his \"personal stake\" in injunctive relief by making \"an essential showing of the likelihood of similar injury in the future.\" LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir.1985). . Several cases have simply ignored the necessity of determining whether there will likely be a repetition of the injury in question. See, for example, Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-26, 94 S.Ct. 1694, 1699-1700, 40 L.Ed.2d 1 (1974) (strike over but action against strikers receiving welfare not moot because state policy is fixed; no discussion of probability of another strike against plaintiff-employer); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973) (attack on abortion laws" }, { "docid": "12882449", "title": "", "text": "appellants’ concern continues, we must dismiss this appeal for lack of an actual present case or controversy because there is no issue still in litigation on which the district court could act. Marden v. International Association of Machinists and Aerospace Workers, 576 F.2d 576, 581 (5th Cir.1978). Under the particular posture of this case, our resolution of whether appellants have a first amendment privilege would be merely an advisory opinion. A portion of the tapes have been produced. The outtakes do not exist. On remand, the district court would have no media information against which to apply the criteria set forth in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), as urged by appellants. This case does not come within the exception to mootness for issues “capable of repetition yet evading review.” The Supreme Court has stated that in the absence of a class action, this doctrine applies only where two conditions are met: the challenged action must be too short in duration to be litigated fully prior to its cessation or termination, and there must be a reasonable expectation that the same complaining party will be subject to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350, 352 (1975). It is not clear that the first condition is met here. Cases applying this doctrine, such as abortion litigation, have involved controversies so short in duration that appellate review would be effectively denied if the case was dismissed as moot. See, e.g., Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-26, 94 S.Ct. 1694, 1699-1700, 40 L.Ed.2d 1, 9-10 (1974) (economic strikes do not generally last long enough for appellate review of controversies); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973) (pregnancy’s duration of 266 days would not allow time for appellate review). In this case, the duration of the controversy was not necessarily short. Appellants could have preserved the issue by applying for a stay until an appeal could be heard. Appellate resolution of the issue" }, { "docid": "23058791", "title": "", "text": "it had subject matter jurisdiction of this action under § 1343(3). III. MOOTNESS The LHSAA raised the issue of mootness before the district court and again on appeal, contending that this case is moot because all of the minor plaintiffs originally named in the complaint have completed the ninth grade at Lutheran High School and no longer are subject to the one-year period of athletic ineligibility. The district court determined that the action is not moot because it fell within the “capable of repetition, yet evading review” exception established in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514-16, 31 S.Ct. 279, 283-84, 55 L.Ed. 310, 315-17 (1911). We agree. The “capable of repetition, yet evading review” exception requires that “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 352 (1975). See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 992, 59 L.Ed.2d 230, 243 (1979); Securities & Exchange Commission v. Sloan, 436 U.S. 103, 109, 98 S.Ct. 1702, 1707, 56 L.Ed.2d 148, 155 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707, 716 (1978). See generally Sosna v. Iowa, 419 U.S. 393, 399-401, 95 S.Ct. 553, 557-58, 42 L.Ed.2d 532, 540-41 (1975). Both prongs of the test are met in this case. First, the experience of modern litigation demonstrates that the constitutional challenges to the transfer rule cannot be litigated fully during the one-year period of athletic ineligibility suffered by an individual student. Second, because the plaintiff parents had other minor children who currently were enrolled at various Lutheran elementary or junior high schools and who ultimately would matriculate at Lutheran High School, the district court reasonably could expect that the same complaining parties again would be subjected to the challenged action in" }, { "docid": "13931526", "title": "", "text": "we cannot rule on the merits. We must either dismiss the action as moot or remand for consideration of class certification. For the reasons stated below, we hold this action has become moot. A review of Supreme Court decisions on the subject of mootness will help define the issue. There are two circumstances in which an action will not be held moot even though the named plaintiff no longer has a stake in the outcome. The first occurs when the case presents an issue “capable of repetition, yet evading review.” E. g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). This doctrine has been applied when: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 352 (1975), discussing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The second circumstance occurs when the suit has been duly certified as a class action. Upon certification, the class of unnamed persons acquires a legal status separate from the named plaintiff, and its existence satisfies the “cases or controversies” requirement of Article III of the Constitution. Franks v. Bowman Transportation Co., 424 U.S. 747, 753, 96 S.Ct. 1251, 1259, 47 L.Ed.2d 444, 455 (1976). In this situation, whether the issue is “capable of repetition, yet evading review” becomes a discretionary factor in determining whether the court should reach the merits. Franks v. Bowman Transportation Co., supra. The present case is not one “capable of repetition, yet evading review” under the cases following Southern Pacific Terminal Co. because there is no demonstrated probability the statute in question will be enforced against appellant again. Weinstein v. Bradford, supra. Neither is it a certified class action as in Sosna v. Iowa, supra. Therefore, the case is" }, { "docid": "6216151", "title": "", "text": "present right upon established facts[,]” Aetna Life Insurance Co. v. Haworth, supra, 300 U.S. at 242, 57 S.Ct. at 464, but would instead answer the hypothetical question of whether the disputed practice violates the requirements of Title VII. We decline to issue such an advisory opinion. See Ashcroft v. Mattis, 431 U.S. 171, 172, 97 S.Ct. 1739,1740, 52 L.Ed.2d 219 (1977) (per curiam); Flast v. Cohen, 392 U.S. 83, 96-97, 88 S.Ct. 1942, 1950-1951, 20 L.Ed.2d 947 (1968); Ringgold v. United States, 553 F.2d 309, 310 (2d Cir. 1977) (per curiam). Backus argues, however, that this case falls within the exception to the mootness doctrine, because the controversy is “capable of repetition, yet evading review[.]” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). We disagree. While the controversy may be capable of repetition, the challenged practice will not, by nature, continually evade judicial review. In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam), the Supreme Court stated that in the absence of a class action, the “capable of repetition, yet evading review” doctrine [is] limited to the situation where two elements combine[]: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again. Because this case has not been certified as a class action, we must determine whether Backus’ claim satisfies these two criteria. Nothing inherent in BMC’s policy prevented Backus’ challenge from being fully litigated. The BMC policy existed before it employed Backus, and, as far as we can ascertain, remains in effect. Backus’ challenge was mooted by his voluntary departure from BMC and his failure to seek reinstatement, to pursue his damage claim, or to seek class relief. Because the alleged harm is not the type that would dissipate during the normal time required for resolution of this controversy, see, e.g., Dunn v. Blumstein, 405 U.S. 330, 333 n.2, 92" }, { "docid": "8176341", "title": "", "text": "the Contract on March 21, 1979, and therefore the events, conditions and circumstances giving rise to this case are no longer in existence. Consequently, the Board of Trade argues, the appeal should be dismissed on the ground of mootness. While it is true that the district court’s order expired on March 21, 1979, and that the events underlying this controversy are now history, this case falls squarely into the well established exception to otherwise moot litigation. In Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), the Supreme Court recognized that the rule requiring dismissal of an appeal on the ground of mootness does not apply in those situations where, due to the short duration of a challenged agency order, a controversy is “capable of repetition, yet evading review.” In non-class action cases two elements must combine for the case to fall within this exception: “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975), citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). We need go no farther than the facts in this case to find that the challenged order is of sufficiently short duration that full litigation prior to its expiration would be impossible. We are, after all, dealing with perceived emergency situations and the Commission’s attempts to take action to maintain or to restore order in the trading of a futures contract. Emergencies are not predictable and, as the circumstances of this case demonstrate, any action taken by the Commission to remedy an emergency is very likely to be short-lived in nature and effect. It is also reasonable to expect that the Board of Trade and the Commission will find themselves again embroiled in a controversy similar to the one presented by the facts of this" }, { "docid": "18121712", "title": "", "text": "Court is without authority to address it. While acknowledging that the issue is ostensibly moot, the Owners maintain that the Court may nevertheless address it because it falls within the “capable of repetition yet evading review” exception to the mootness doctrine. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In order to invoke this exception, however, the Owners must demonstrate that “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam). While the Owners may satisfy the “evading review” element, they do not satisfy the “capable of repetition” one. The Supreme Court and this Court have held that “orders of less than two years’ duration ordinarily evade review.” Burlington N.R. Co. v. STB, 75 F.3d 685, 690 (D.C.Cir.1996); see Southern Pacific, 219 U.S. at 514-16, 31 S.Ct. at 283-84. Because the Librarian’s deadline for full payment of arrears followed publication of the royalty rate in the Federal Register by only a few months, it was a virtual certainty that the deadline would pass before the Owners’ challenge to it could be fully litigated and resolved by the court. Cf. Burlington, 75 F.3d at 690 (“The agency action here would also evade review, because of the virtual certainty that contracts giving rise to such action will expire before the conclusion of judicial review of the action The Owners therefore meet the first element of this exception to the mootness doctrine. They fail, however, to satisfy their burden under the second half of the test. For an action to be “capable of repetition” there must be “a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein, 423 U.S. .at 149, 96 S.Ct. at 349. Courts have “interpreted ‘same action’ to refer to particular agency policies, regulations, guidelines," }, { "docid": "17036622", "title": "", "text": "affect the rights of the litigants in the cases before them. E. g., DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); Sosna v. State of Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Nevertheless, plaintiffs contend almost sub silencio that the instant circumstances fit within the judicially carved exception to the mootness doctrine because the issue and claims presented are “capable of repetition, yet evading review.” See e. g. Doe v. Bolton, 410 U.S. 179, 187, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The exception has been applied most ch. ten in cases involving factual circumstances in which the issues and particularly the status of the parties change periodically or are of relatively short duration. See, e. g., Doe v. Bolton, supra; Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); McGill v. Parsons, 532 F.2d 484 (5th Cir. 1976). The Supreme Court has articulated the doctrine in terms of a two fold test: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (emphasis added); see also Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); In re Security Investment Properties, Inc., 406 F.Supp. 628, 631 (N.D.Ga.1975); Alberta Shumate, et al. v. T. M. “Jim” Parham, C76-838A (N.D.Ga. Feb. 22, 1977). In the instant proceedings, there was testimony by .Mr. William Marlict of Tinker, Campbell and Ewald advertising agency that magazines such as the subject publication have a life span of approximately four to five" } ]

[ { "docid": "7319599", "title": "", "text": "the gross value of the contracts. A district court’s interpretations of the sentencing guidelines are conclusions of law, reviewed de novo. United States v. McCaskey, 9 F.3d 368, 372 (5th Cir.1993). The guidelines set a base offense level of 8 for cases of commercial bribery. When “the greater of the value of the bribe or the improper benefit to be conferred exceed[s] $2,000,” the level should be increased according to the table in § 2F1.1. U.S.S.G. § 2B4.1. We must discern the meaning of the phrase “value of the improper benefit to be conferred.” The phrase could mean gross value, net profits, or some intermediate result reached by deducting some but not all costs from gross value. The meaning of the phrase is not obvious, but the commentary provides insight: “The ‘value of the improper benefit to be conferred’ refers to the value of the action to be taken or effected in return for the bribe.” U.S.S.G. § 2B4.1, application note 2. For further clarification, the commentary cross-references U.S.S.G. § 2C1.1 (1994), covering bribery involving public officials. Application note 2 of the commentary to § 2C1.1 states: The value of “the benefit received or to be received” means the net value of such benefit. Examples: (1) A government employee, in return for a $500 bribe, reduces the price of a piece of surplus property offered for sale by the government from $10,000 to $2,000; the value of the benefit received is $8,000. (2) A $150,000 contract on which $20,000 profit was made was awarded in return for a bribe; the value of the benefit received is $20,000. Do not deduct the value of the bribe itself in computing the value of the benefit received or to be received. In the above examples, therefore, the value of the benefit received would be the same regardless of the value of the bribe. The very use of the adjective “net” before “value” implies that some costs should be deducted. This is supported by the two examples in note 2. In both examples, costs are deducted from gross value. Finally, the instructions in note" } ]

[ { "docid": "17482249", "title": "", "text": "“in trust” for another in order to prove mail or wire fraud, this additional language in the indictment was surplusage and could be disregarded. Id. We also conclude that the district court did not constructively amend the indictment by omitting the “in trust” language from the jury instructions. Because the “in trust” language was surplusage, removal of this language from the jury instructions was not error. See United States v. Garcia-Paz, 282 F.3d 1212, 1215-16 (9th Cir.2002). VII In bribery, extortion, and honest-services fraud cases, § 2C1.1 of the United States Sentencing Guidelines instructs a sentencing court to enhance a defendant’s offense level based on the “greatest” of “[1] the value of the payment, [2] the benefit received or to be received in return for the payment, [3] the value of anything obtained or to be obtained by a public official or others acting with a public official, or [4] the loss to the government from the offense[.]” U.S.S.G. § 2C1.1(b)(2). The district court found the ten-level enhancement “applicable under prong one; that is, the value of the $200,000 payment on the counts of conviction that Renzi received in exchange for the influence exerted to the sale of the property.” Renzi and Sandlin challenge the district court’s calculation of value under § 201.1(b)(2). They contend that the district court erred by concluding that the “value of the payment” was $200,000 (the amount of the debt to Renzi that Sandlin paid off), rather than zero (the net value to Renzi). We review a district court’s method of calculating loss under the Sentencing Guidelines de novo. United States v. Del Toro-Barboza, 673 F.3d 1136, 1153-54 (9th Cir.2012). We review the district court’s determination of the amount of loss for clear error. Id. Renzi and Sandlin base their argument on the Application Notes to § 201.1(b), which state that “[t]he value of ‘the benefit received or to be received’ means the net value of such benefit.” U:S.S.G. § 2C1.1, app. n.3 (emphasis added). They also rely on United States v. White Eagle, where we found that the -district court erred in equating the" }, { "docid": "17725734", "title": "", "text": "in exchange for Ring’s corrupt payments was over $14 million, triggering an enhancement of 20 levels under § 2B1.1(b)(1)(H). In the alternative, the government argues that the value of the corrupt payments exceeds $1 million, triggering a 16-level enhancement under § 2B1.1(b)(1)(I). If neither of these enhancements apply, the government maintains that the 8-level “elected official” enhancement, § 2C1.1(b)(2)(B) would apply as well. Ring challenges the use of each of these enhancements. 1. Calculation of “Benefit Received or to be Received” The primary measure of “loss” for purposes of § 2C1.1(b)(2)(A) is the value of the “benefit received or to be received in return for the payment,” as this value is typically larger than the amount of the bribe itself, and the Guidelines instruct the Court to use whichever measure of value is greatest. § 2C1.1(b)(2)(A). The government “bears the burden of supporting its loss calculation with reliable and specific evidence.” United States v. Gupta, 463 F.3d 1182, 1200 (11th Cir.2006). “The value of ‘the benefit received or to be received’ means the net value of such benefit.” § 2C1.1 cmt. n. 2. Thus, where a defendant pays a bribe in return for being awarded a government contract, the “value of the benefit” is the profit made on the contract, not the gross value of the contract. Id.; United States v. Sapoznik, 161 F.3d 1117, 1118-20 (7th Cir.1998) (Posner, J.) (“[T]he relevant ‘benefit received’ is indeed profit (net revenue) and not (gross) revenue.”). Furthermore, it is clear that where an individual pays a bribe on behalf of a client, the relevant “value of the benefit” is the “net value accruing to the entity on whose behalf the individual paid the bribe.” United States v. Cohen, 171 F.3d 796, 803 (3d Cir.1999) (citing United States v. Landers, 68 F.3d 882, 884 (5th Cir.1995) (sales representative who paid bribe subject to enhancement based on the net value his employer derived from contracts obtained as a result of the bribe)). Where, by contrast, there is no evidence that the payer of a bribe was acting jointly with or as an agent of a" }, { "docid": "18030183", "title": "", "text": "of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest, exceeded $2,000, increase [the base offense level] by the corresponding number of levels from the table in § 2F1.1 (Fraud and Deceit). U.S.S.G. § 201.1(b)(2)(A). The ' district court, finding that “the defendant did not receive any benefit, nor did he intend to receive a benefit,” used the value of the payment, $4,000, to impose a one-level increase in the base offense level. The Government makes two closely-related arguments. First, the Government suggests that the district court should have considered the benefit to Gas City. Second, the Government argues that the district court made an error of law in holding that the defendant must have personally received the benefit in order to merit an upward departure. The Government first argues that the benefit that accrued to Gas City should be considered in the calculation of benefit. Agosti-no counters that the Sentencing Guidelines did not contemplate benefits accruing to third parties .in factual situations like the present case. Agostino cites to the background section of U.S.S.G. § 2C1.1, which he claims is “very telling” as to what the Guideline Commission had in mind. In discussing whether the value of the bribe itself should be deducted from the benefit received, the background section states, “for deterrence purposes, the punishment should be commensurate with the gain to the payer or the recipient of the bribe, whichever is higher.” U.S.S.G. § 2C1.1, comment, (backg’d) (emphasis added). Accordingly, the defense asserts that for the purpose of the enhancement, the court can only look to the benefits to the payer or the recipient. Since Gas City is neither a payer nor a recipient, the defense argues, the court cannot consider any benefits accruing to it. There is some precedent suggesting that the sentencing court may consider benefits flowing to third parties in determining benefit/loss under U.S.S.G. § 2C1.1. See United States v. Pretty, 98 F.3d 1213 (10th Cir.1996), cert. denied — U.S. -, 117 S.Ct. 2436, 138 L.Ed.2d 197" }, { "docid": "17386746", "title": "", "text": "of such benefit.” U.S.S.G. § 2C1.1(b)(2)(A), cmt. n. 2. The commentary provides two examples: (1) A government employee, in return for a $500 bribe, reduces the price of a piece of surplus property offered for sale by the government from $10,000 to $2,000; the value of the benefit received is $8,000. (2) A $150,000 contract on which $20,000 profit was made was awarded in return for a bribe; the value of the benefit received is $20,000. Do not deduct the value of the bribe itself in computing the value of the benefit received or to be received. In the above examples, therefore, the value of the benefit received would be the same regardless of the value of the bribe. U.S.S.G. § 2C1.1, cmt. n. 2; see United States v. Griffin, 324 F.3d 330, 366 (5th Cir.2003). Nelson gave Cifer a letter expressing his official support for the Cifer project to Quorum Venture Group, which had been set up by the FBI. The original letter, drafted by undercover agents, suggested the New Roads City Council supported the contract, but Nelson edited it to state that while New Roads was “committed to working towards a contract” to use Cifer, it was contingent on the approval of the City Council and public input. Id. The letter concluded: “Be assured that the appropriate steps will be taken to ensure that the city makes a good faith effort to reach a final agreement with [Cifer] that is both fair and reasonable.” Id. Nelson told the FBI after the investigation had ended that the letter “was to be used to obtain two to three million dollars in private investment money for the Cifer 5000.” As with the EPA letter, while Nelson may have expected the letter to contribute to Cifer’s ability to obtain private investments, the letter itself was not a funding application, nor did it explicitly request any funds. The record indicates that Nelson expected Cifer to use its investment funds to launch a legitimate waste receptacle cleaning business. See United States v. Sublett, 124 F.3d 693, 695 (5th Cir.1997) (where a defendant “uses fraud" }, { "docid": "22161103", "title": "", "text": "[Swann] could pay a fine within the guideline range or make a lump-sum payment toward restitution shortly after sentencing through use of liquid assets.” The PSI noted that Swann’s “future ability to make payments on an installment basis will be dependant [sic] on several factors including the sentence in this case, his family situation, and his ability to contain monthly expenses.” The PSI stated that restitution was mandatory under 18 U.S.C. § 3663A(a)(l) (the MVRA) and that the County had requested restitution. Swann objected to the 22-level increase to his offense level under U.S.S.G. § 2Cl.l(b)(2)(A), arguing his offense level should be based on the amount of bribes ($355,533) rather than the net profits or benefits ($42,460,880) the contractors received. Section 2Cl.l(b)(2)(A) provides: If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest (i) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (ii) exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. U.S.S.G. § 201.1(b)(2)(A) (2003). Swann argued there was no evidence of a causal connection linking any bribe to the award of any contract, and therefore, the 22-level adjustment under § 201.1(b)(2)(A) was improper. Even if a quid pro quo is not required for a § 666 conviction, Swann claimed evidence of a quid pro quo was necessary under § 201.1(b)(2)(A) to increase his offense level. B. Sentencing Hearing At sentencing, Swann objected to the PSI on the ground that co-defendants RAST, Bobby Rast, and Danny Rast’s offense levels were based on the amount of bribes given, not the financial benefit or profit to them. Swann also objected to any obstruction of justice enhancement. The district court sustained Swann’s objection to the obstruction enhancement. The district court, however, concluded the benefit, not bribe, amount should be used under § 201.1(b)(2)(A) and found the evidence was “absolutely clear that there is at least 20 million dollars that was benefit” to the bribe-payor" }, { "docid": "1701261", "title": "", "text": "all “relevant conduct” in the past tense. The government does not cite a single case where unknown possible future payments were included in determining whether more than one bribe occurred. Moreover, the district court seemed to improperly characterize the contract as having an indefinite duration with an indefinite number of future bribe payments; in fact, it was only a one-year contract, lasting from June 16, 2010 until June 15, 2011. It is indeed illustrative to note that, as a result of the speculative nature of the payments, the United States Probation Office recommended a sentence for Roussel of 96 months—40 months below the sentence imposed. See Sentencing Recommendation, 1-2. In sum, we are firmly convinced that the district court erred in finding more than one bribe, and it should have therefore declined to apply the corresponding two-level sentencing guidelines enhancement. VI. Whether the district court clearly erred in its expected benefit calculation. A. Standard of Review Again, we review purely legal conclusions or interpretations of the meaning of a sentencing guideline de novo, and review the trial court’s findings of fact—including benefit calculations—for clear error. See Griffin, 324 F.3d at 365 (holding that district court clearly erred in its benefit calculation for the purposes of the sentencing guidelines enhancement). Clear error exists if we are left with a definite and firm conviction that a mistake has been made. Id. B. Analysis For virtually the same reasons articulated with respect to the multiple bribes enhancement, we find that the district court clearly erred in its calculation of the fraudulent contract’s expected benefit to Rous-sel, Branch, and Dabdoub. The sentencing guidelines state: If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. U.S. Sentencing Guidelines Manual § 201.1(b)(2). The" }, { "docid": "23551490", "title": "", "text": "under U.S.S.G. § 2B4.1(b)(l) because, according to her, for purposes of the enhancement the “greater value of the bribe or the improper benefit to be conferred” includes only the amount of money that Medicare paid to the pharmacies, or $245,310. Valladares argues that the district court incorrectly used the total intended loss of more than $3 million and, if it had used the improper benefit conferred on the pharmacies, she would have received only a 12-level enhancement. We review the district court’s determination under § 2B4.1(b)(l) only for clear error. United States v. Liss, 265 F.3d 1220, 1230 (11th Cir.2001). Section 2B4.1 provides that the base offense level is enhanced pursuant to the amount of loss table in § 2B1.1 if “the greater value of the bribe or the improper benefit to be conferred ... exceeded $5,000.” U.S.S.G. § 2B4.1(b)(1)(B). The table in § 2B1.1 provides for an 18-level increase if the value is more than $2.5 million but not more than $7 million. U.S.S.G. § 2Bl.l(b)(l). According to the application notes, “[t]he ‘value of the improper benefit to be conferred’ refers to the value of the action to be taken or effected in return for the bribe.” U.S.S.G. § 2B4.1 cmt. n.2. The notes also refer to the commentary in § 2C1.1, which provides that “ ‘the benefit received or to be received’ means the net value of such benefit.” U.S.S.G. § 2C1.1 cmt. n.3; see also United States v. DeVegter, 439 F.3d 1299, 1303 (11th Cir.2006) (stating that the improper benefit under § 2B4.1 is the net value conferred). The parties do not dispute that the value of the improper benefit to be conferred on the pharmacies was between $200,000 and $400,000. Valladares also does not challenge the district court’s finding that the amount of loss from the PRN scheme was $2.7 million, so she has abandoned this issue. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998) (stating that issues not raised on appeal are abandoned). However, Valladares does dispute the government’s contentions that the PRN scheme was relevant conduct and that, as a result," }, { "docid": "6074631", "title": "", "text": "more than one applies, use the greater): (A) If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest, exceeded $2,000, increase by the corresponding number of levels from the table in § 2F1.1 (Fraud and Deceit). (B) If the offense involved a payment for the purpose of influencing an elected official or any official holding a high level decision-making or sensitive position, increase by 8 levels. USSG § 2C1.1. By comparison, § 2B3.2, entitled “Extortion by Force or Threat of Injury or Serious Damage,” states in relevant part: (a) Base Offense Level: 18 (b) Specific Offense Characteristics (1) If the offense involved an express or implied threat of death, bodily injury, or kidnapping, increase by 2 levels. (2) If the greater of the amount demanded or the loss to the victim exceeded $10,000, increase by the corresponding number of levels from the table in § 2B3.1(b)(6). (3) ... (B) If the offense involved preparation to carry out a threat of (i) death, (ii) serious bodily injury, (iii) kidnapping, or (iv) product tampering; or if the participant(s) otherwise demonstrated the ability to carry out such a threat, increase by 3 levels. USSG § 2B3.2. Because neither the text of § 2C1.1 nor § 2B3.2 mentions union officials or labor disputes per se, we will look to the application notes and commentary for instruction on which of these two Guidelines should be applied under the facts before us. See United States v. Bierley, 922 F.2d 1061, 1066 (3d Cir.1990). The “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). A court’s “[f]ailure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to reversal on appeal.” USSG § 1B1.7. According to the background commentary, § 2C1.1" }, { "docid": "1701262", "title": "", "text": "the trial court’s findings of fact—including benefit calculations—for clear error. See Griffin, 324 F.3d at 365 (holding that district court clearly erred in its benefit calculation for the purposes of the sentencing guidelines enhancement). Clear error exists if we are left with a definite and firm conviction that a mistake has been made. Id. B. Analysis For virtually the same reasons articulated with respect to the multiple bribes enhancement, we find that the district court clearly erred in its calculation of the fraudulent contract’s expected benefit to Rous-sel, Branch, and Dabdoub. The sentencing guidelines state: If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. U.S. Sentencing Guidelines Manual § 201.1(b)(2). The guidelines require a 12-level increase for expected benefits to Roussel, Branch, and Dabdoub between $200,000.01 and $400,000.00, and a 16-level increase for expected benefits between $1,000,000.01 and $2,500,000.00. U.S. Sentencing Guidelines Manual § 2Bl.l(b)(l). “[T]he loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information. Further, ... if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss.” United States v. Ismoila, 100 F.3d 380, 396 (5th Cir.1996) (emphasis added) (quotation omitted) (holding that the intended loss was greater than the actual loss, and therefore the district court’s sentencing determination based on the intended loss was correct); see also United States v. Chappell, 6 F.3d 1095, 1101 (5th Cir.1993) (quotation omitted). The district court applied a 16-level enhancement based on the presentence investigation report’s recommendation of estimated benefits to Branch, Roussel, and Dabdoub from the fraudulent overpayment of between $1,000,000.01 and $2,500,000.00. The enhancement was based on" }, { "docid": "17725733", "title": "", "text": "defendant’s offense level is increased by 2 levels. C. Calculation of “Loss” Enhancement Under § 2C1.1(b)(2) Section 2C1.1(b)(2) enhances the offense level for bribery based on the greatest of the following calculations: (A) If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest (i) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (ii) exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. (B) If the offense involved a payment for the purpose of influencing an elected official or any official holding a high-level decision-making or sensitive position, increase by 8 levels. Loss calculations “need not be precise,” United States v. Antico, 275 F.3d 245, 270 (3d Cir.2001), and the Guidelines require only that the Court “make a reasonable estimate” of these values. § 2B1.1 cmt. n. 3(C). The government asserts that the value of the benefits received in exchange for Ring’s corrupt payments was over $14 million, triggering an enhancement of 20 levels under § 2B1.1(b)(1)(H). In the alternative, the government argues that the value of the corrupt payments exceeds $1 million, triggering a 16-level enhancement under § 2B1.1(b)(1)(I). If neither of these enhancements apply, the government maintains that the 8-level “elected official” enhancement, § 2C1.1(b)(2)(B) would apply as well. Ring challenges the use of each of these enhancements. 1. Calculation of “Benefit Received or to be Received” The primary measure of “loss” for purposes of § 2C1.1(b)(2)(A) is the value of the “benefit received or to be received in return for the payment,” as this value is typically larger than the amount of the bribe itself, and the Guidelines instruct the Court to use whichever measure of value is greatest. § 2C1.1(b)(2)(A). The government “bears the burden of supporting its loss calculation with reliable and specific evidence.” United States v. Gupta, 463 F.3d 1182, 1200 (11th Cir.2006). “The value of ‘the benefit received or to be received’ means the net value" }, { "docid": "19070064", "title": "", "text": "the substantive and procedural reasonableness of a district court’s sentence is reviewed under a deferential abuse-of-discretion standard. United States v. Gray, 521 F.3d 514, 542 (6th Cir.2008). Loss Calculation In bribery cases involving public officials, an enhancement is applicable under the sentencing guidelines when “the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be ob tained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $ 5,000.” USSG § 201.1(b)(2). The level of enhancement is determined by the table in USSG § 2B1.1(b)(1) and increases as the value of the payment, benefit, or loss increases. In this case, the size of the sentencing enhancement mandated by USSG § 201.1(b)(2) was a source of significant dispute between the parties. The government argued that the enhancement should be calculated on the basis of a loss to the government of $2,842,494 — the net profits that East-West realized from all of the MetroHealth projects that Greco managed. The probation office suggested that the enhancement should be calculated on the basis of the $628,000 that Patel admitted— in both his plea and his testimony at Gre-co’s trial — providing to Carroll and Greco over the course of the scheme. Greco contended that the size of the sentencing enhancement should be calculated on the basis of a loss amount of no more than the $70,000 that the government was able to prove Greco received from Patel in exchange for his participation in the bribery scheme. The district court rejected all three figures. The court refused to accept the government’s loss figure of $2,842,494 for lack of evidence that Greco played any role in, or had any knowledge of, the bid-rigging and inflation of invoices that took place on the larger construction jobs, over which Carroll exercised exclusive authority. The district court rejected the Probation Office’s loss calculation of $628,000 for lack of evidence other than Patel’s testimony to support it, given several reasons to be" }, { "docid": "17386737", "title": "", "text": "of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in § 2B1.1 ... corresponding to that amount. U.S.S.G. § 2Cl.l(b)(2). The application notes to § 2B1.1 state that for the purpose of this calculation, “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n. 3(A). Intended loss “means the pecuniary harm that was intended to result from the offense” and “includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).” Id. cmt. n. 3(A)(ii). Intended loss need not be limited to the amount the defendant is “capable of inflicting.” United States v. Edwards, 303 F.3d 606, 645 n. 27 (5th Cir.2002). Nonetheless, the calculation of intended loss cannot be “purely speculative.” Roussel, 705 F.3d at 201. There must be a “reasonable estimate of the ‘intended loss that the defendant was attempting to inflict.’ ” Id. We use a “fact-specific, case-by-case inquiry into the defendant’s intent in determining ‘intended loss.’ ” United States v. Isiwele, 635 F.3d 196, 203 (5th Cir.2011). “Although it may be theoretically possible to intend a loss that is greater than the potential actual loss, our case law requires the government [to] prove by a preponderance of the evidence that the defendant had the subjective intent to cause the loss that is used to calculate his offense level.” Id. (quoting United States v. Sanders, 343 F.3d 511, 527 (5th Cir.2003)) (internal quotation marks omitted). The district court increased Nelson’s offense level by 18 corresponding to its valuation of the bribery amount at $6,382,000. See U.S.S.G. § 2Bl.l(b)(l). Nelson suggests a 10-level increase corresponding to his suggested loss calculation of $152,000. Nelson challenges the district court’s calculations relating to three aspects of the bribery activity: first, the letter to the EPA; second, the letter to private investors; and third," }, { "docid": "19070063", "title": "", "text": "receiving federal funds, five counts of outright bribery concerning such programs, one count of violating and one count of conspiring to violate the Hobbs Act, four counts of making and subscribing false tax returns, and one count of conspiring to commit mail fraud. He was convicted on all counts. The district court sentenced Greco to 112 months in prison, followed by three years of supervised release. At a separate restitution hearing, the court also ordered Greco to pay $994,734.84 in restitution to MetroHealth. DISCUSSION When reviewing a district court’s sentencing order, we examine the court’s factual findings for clear error and its sentencing calculation de novo. United States v. Gardner, 649 F.3d 437, 442 (6th Cir.2011). Although we will not overturn the district court’s factual findings as to loss and restitution unless they are clearly erroneous, “whether those facts as determined by the district court warrant the application of a particular guideline provision is purely a legal question and is reviewed de novo.” United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991). By contrast, the substantive and procedural reasonableness of a district court’s sentence is reviewed under a deferential abuse-of-discretion standard. United States v. Gray, 521 F.3d 514, 542 (6th Cir.2008). Loss Calculation In bribery cases involving public officials, an enhancement is applicable under the sentencing guidelines when “the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be ob tained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $ 5,000.” USSG § 201.1(b)(2). The level of enhancement is determined by the table in USSG § 2B1.1(b)(1) and increases as the value of the payment, benefit, or loss increases. In this case, the size of the sentencing enhancement mandated by USSG § 201.1(b)(2) was a source of significant dispute between the parties. The government argued that the enhancement should be calculated on the basis of a loss to the government of $2,842,494 — the net profits that East-West realized" }, { "docid": "22407484", "title": "", "text": "that the Guidelines were advisory only; therefore, it did not err in finding facts relevant to sentencing. C. Bribery Guideline Appellants argue that, because the jury charge permitted them to be convicted of federal offenses based upon mere gratuity and not bribery, the district court erred in using the Guideline applicable to bribery-related offenses, U.S.S.G. § 2C1.1, rather than the Guideline applicable to gratuity offenses, U.S.S.G. § 2C1.2. As stated above, we conclude that the district court adequately instructed the jury on bribery. Accordingly, because the jury found appellants guilty on a theory of bribery rather than gratuity, the district court did not err in relying on U.S.S.G. § 2C1.1. D. Loss calculations in regard to the Marks case Minor and Whitfield claim that the district court erred in including the full amount of the original award in Marks ($3.75 million) in them respective loss calculations. U.S.S.G. § 201.1(b)(2) provides for an enhanced sentence if the “value of the payment” or “the benefit received or to be received in return for the payment” exceeds $5,000. The level of enhancement is dictated by the table in U.S.S.G. § 2B1.1. Application Note 2 of U.S.S.G. § 2B1.1 provides that the loss should be determined by the greater of the actual loss or intended loss, which is defined in relevant part as “the pecuniary harm that was intended to result from the offense.” The amount of the benefit to be received is a finding of fact that we review for clear error, and it need not be determined with precision. United States v. Griffin, 324 F.3d 330, 365-66 (5th Cir.2003). Before sentencing, the Mississippi Supreme Court reduced the damages award in Marks from $3.64 million to $1.64 million, 2003 Miss. LEXIS 88, at *36-37, 2003 WL 556438, and later vacated the district court’s judgment altogether, 2007 Miss. LEXIS 237, at *1. As Diamond Offshore has suffered no actual loss, the presentence report (PSR) recommended that the district court use the intended loss, which the PSR concluded was the award in Marks as reduced by the Mississippi Supreme Court. The district court rejected this" }, { "docid": "17386736", "title": "", "text": "rulings limiting government inquiry, restricted testimony to avoid conversation going to matters other than the knowing and voluntary signing of the factual basis. Viewing the record “in its entirety,” we conclude that any error in admitting Pierson’s testimony was harmless. See Griffin, 324 F.3d at 348. C. Sentencing Loss Calculation Nelson argues that the district court arrived at the wrong guidelines sentencing range by miscalculating the value of his bribery activity. Although we review the district court’s loss calculations for clear error, United States v. Scher, 601 F.3d 408, 412 (5th Cir.2010), we review the district court’s method of determining the amount of loss, as well as its interpretations of the meaning of a sentencing guideline, de novo. United States v. Harris, 597 F.3d 242, 251 (5th Cir.2010); United States v. Roussel, 705 F.3d 184, 197 (5th Cir.2013). The sentencing guidelines provide that the offense level for bribery-related offenses is to be increased as follows: If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in § 2B1.1 ... corresponding to that amount. U.S.S.G. § 2Cl.l(b)(2). The application notes to § 2B1.1 state that for the purpose of this calculation, “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n. 3(A). Intended loss “means the pecuniary harm that was intended to result from the offense” and “includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).” Id. cmt. n. 3(A)(ii). Intended loss need not be limited to the amount the defendant is “capable of inflicting.” United States v. Edwards, 303 F.3d 606, 645 n. 27 (5th Cir.2002). Nonetheless, the calculation of intended loss cannot be “purely speculative.” Roussel, 705 F.3d at 201." }, { "docid": "17725732", "title": "", "text": "officials. The Court rejects this argument. Section 2C1.1(b)(1) speaks not of multiple “schemes to defraud” but of multiple “bribes,” and Ring was both charged and convicted of a scheme to defraud involving multiple public officials. This is altogether different from “a number of installment payments for a single action,” and there was ample evidence at trial of multiple “incidents” of bribery, targeted at multiple public officials. See United States v. Kahlon, 38 F.3d 467, 470 (9th Cir.1994) (multiple “payments [that] were part of a larger conspiracy” can be the basis for an enhancement under § 201.1(b)(1), as long as they “were not installment payments for a single action.”); United States v. Arshad, 239 F.3d 276, 281 (2d Cir.2001) (“Courts confronted with similar situations have uniformly held that multiple payments meant to influence more than one action should not be merged together for purposes of § 2C1.1 merely because they share a single overall goal or are part of a larger conspiracy to enrich a particular defendant or enterprise.”) Accordingly, § 2C1.1(b)(1) should be applied, and defendant’s offense level is increased by 2 levels. C. Calculation of “Loss” Enhancement Under § 2C1.1(b)(2) Section 2C1.1(b)(2) enhances the offense level for bribery based on the greatest of the following calculations: (A) If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest (i) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (ii) exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. (B) If the offense involved a payment for the purpose of influencing an elected official or any official holding a high-level decision-making or sensitive position, increase by 8 levels. Loss calculations “need not be precise,” United States v. Antico, 275 F.3d 245, 270 (3d Cir.2001), and the Guidelines require only that the Court “make a reasonable estimate” of these values. § 2B1.1 cmt. n. 3(C). The government asserts that the value of the benefits received" }, { "docid": "12624778", "title": "", "text": "[it].” 514 U.S. at 768, 115 S.Ct. 1769; see also United States v. Bauer, 75 F.3d 1366, 1370-72 (9th Cir.) (no discriminatory intent where defendant unable to rebut prosecutor’s race-neutral explanation that challenges based on prospective jurors’ housing locale, even though later determined that geographical area reflected racial division), superseded on other grounds by 84 F.3d 1549 (9th Cir.1996); United States v. Annigoni, 68 F.3d 279, 282-83 (9th Cir.1995) (mere fact that male juror of Asian heritage was challenged proved nothing when plausible race-neutral explanation was articulated by defense), superseded on other grounds by 96 F.3d 1132 (9th Cir.1996) (en banc); United States v. Castro-Romero, 964 F.2d 942, 943 (9th Cir.1992) (no discriminatory intent where prosecutor explained that an African-American prospective juror challenged because, in voir dire for a trial involving sexual abuse of a minor, the prospective juror had stated that children could lie “in such matters”). Because the prosecutor’s explanation was race-neutral, we find no error. III. CALCULATION OF BENEFIT RECEIVED UNDER § 2C1.1(b)(2)(A) United States Sentencing Guideline § 2C1.1(b)(2)(A) provides for an increase of the offense level for bribery on the basis of “the value of the payment, the benefit received ... in return for the payment, or the loss to the government from the offense, whichever is greatest....” Appellants contend that the court misapplied the guideline when it determined the benefit received with reference to the profit realized by the importers from the illegal imports made possible by the bribery scheme. That profit was $558,000, while the bribes received by McGirt and Gillam were only $54,500 and $10,075, respectively. We review the district court’s application of sentencing guidelines de novo. See United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996). Section 2C1.1(b)(2)(A) states: If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest, exceeded $2,000, increase by the corresponding number of levels from the table in § 2F1.1 (Fraud and Deceit). Appellants contend that the guideline limits the district court to increasing the offense level" }, { "docid": "19162888", "title": "", "text": "an ongoing course of conduct, and there was ample evidence in this case supporting the inference that Whiteagle solicited money and other things of value on Pettibone’s behalf with the express understanding that Pettibone would take future actions favorable to the companies from which the payments were sought. The district court itself found that Whitea-gle solicited money and other things of value from his clients, and funneled the same to Pettibone and his family members, in order to corruptly influence Pettibone’s actions as an elected member of the Ho-Chunk legislature. R. 223 at 3. The court therefore applied the correct guideline. Whiteagle’s second contention is that the district court assigned an incorrect dollar value to the bribery in this case. The bribery guideline specifies the following with respect to the loss or other value associated with the bribes: If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government, whichever is greatest, exceeds $5,000, increase [the offense level] by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. § 201.1(b)(2). Pursuant to this provision, the district court increased Whiteagle’s base offense level by 18 levels, finding that the relevant value was between $2.5 million and $7 million. See § 2Bl.l(b)(l)(J). The court reasoned that either of two different measures of the bribery justified this conclusion. First, Whiteagle’s clients received contracts worth at least $7 million that they theoretically might have received without Whiteagle’s corrupt assistance but which, in the court’s view, likely would have gone to others. See R. 223 at 3. Second, Whiteagle received payments from those clients exceeding $2.5 million, and overwhelming evidence indicated that he would not' have received those payments absent his ability to deliver Pettibone’s support, which was facilitated through bribery. Id. Whiteagle contends that either measure was an incorrect reference point for the court to use. He views the total value" }, { "docid": "19886797", "title": "", "text": "applies when there are serious ambiguities in the text of a criminal statute. See, e.g., Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). Anderson claims that the rule applies here because an argument could be made for the application of either § 2C1.1 or § 2C1.2. But the rule does not apply when ambiguity is a result of an application of the Guidelines to a particular set of facts; that is, the rule does not apply to factual ambiguities. See United States v. McEntire, 153 F.3d 424, 438 & n. 16 (7th Cir.1998). There is nothing ambiguous about § 2C1.1. See Agostino, 132 F.3d at 1195; United States v. Cruzado-Laureano, 440 F.3d 44, 47 n.8 (1st Cir.2006). So the rule does not apply here. B. The Calculation of the Benefit Received Under § 2C1.1 We now turn to the most hotly contested issue in this case, which is the proper calculation of the “benefit received” in return for the bribe. See U.S.S.G. § 201.1(b)(2) (2003). The bribery provisions base the severity of punishment on the value of the bribe—the more valuable the bribe, the heavier the sentence imposed. See United States v. Sapoznik, 161 F.3d 1117, 1118 (7th Cir.1998). But the value of the bribe is not always the sum offered by the defendant (in this case, $10,000). Instead, § 201.1(b)(2) instructs the sentencing judge to use “the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest.” U.S.S.G. § 201.1(b)(2) (2003). Both parties agree that the value of the “benefit received or to be received” is the proper measure in this case, but they disagree on how it should be calculated. Anderson fixes the value of the benefit received at $41,131, while the Government fixes it somewhere between $1,000,000 and $2,500,000. Needless to say, these two calculations would have very different ramifications for Anderson’s" }, { "docid": "10117856", "title": "", "text": "level by eleven points. The district court applied USSG § 201.1(b)(2)(A) (and that guideline’s directive to use the table in USSG § 2F1.1) to enhance Muhammad’s base offense level in order to account for the value of the benefit to be received in return for the bribe. The court reasoned that the language of § 201.1(b)(2)(A) compelled it to view the $933,000 jury verdict from the Favala case as the benefit to be received in return for the bribe because Cumberland would not have had to pay this amount had Muhammad influenced the verdict. Under § 2Fl.l(b)(l)(L), the $933,000 “benefit” corresponded to an eleven-point enhancement in Muhammad’s base offense level. Muhammad argues that the court should have instead used the amount of the bribe — $2,500— to calculate his offense level, which would have increased the offense level by only one point. Because this sentencing challenge involves interpretation of the guidelines, we review it de novo. United States v. McDuffy, 90 F.3d 233, 235 (7th Cir.1996). The plain language of § 2C1.1(b)(2)(A) supports the Government’s argument that the district court properly applied the eleven-point enhancement. That section provides: “If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest, exceeded $2,000, increase by the corresponding number of levels from the table in § 2F1.1 (Fraud and Deceit).” USSG § 2C1.1(b)(2)(A). The guideline’s language thus requires the district court to enhance the offense level by the number corresponding to the greatest of the following values: (1) the payment (i.e., the bribe), (2) the benefit received or to be received in return for the payment (i.e., the amount of civil judgment that Cumberland would have avoided had Muhammad’s plan been successful), or (3) the loss to the government. In this case, the bribe was $2,500, the benefit to be received was Cumberland being relieved of paying the $933,000 damage award, and the government sustained no monetary loss. Without question, the greatest of these values is the $933,000, and thus the district court properly" } ]

[ { "docid": "22744634", "title": "", "text": "to 10 days per month good-behavior-time credit toward reduction of the maximum term of his sentence. Rodriguez elected to participate in this program. Optimally, such a prisoner may be released on parole after having served approximately two-thirds of his maximum sentence (20 days out of every 30); but accrued good-behavior credits so earned may at any time be withdrawn, in whole or in part, for bad behavior or for violation of the institutional rules. N. Y. Correction Law § 803 (1). Rodriguez was charged in two separate disciplinary-action reports with possession of contraband material in his cell. The deputy warden determined that as punishment, 120 days of Rodriguez' earned good-conduct-time credits should be canceled, and that Rodriguez should be placed in segregation, where he remained for more than 40 days. In the “Remarks” section of the deputy warden's determination was a statement that Rodriguez had refused to disclose how he had managed to obtain possession of the items in question. Rodriguez then filed in the District Court a complaint pursuant to § 1983, combined with a petition for a writ of habeas corpus. He asserted that he was not really being punished for possession of the contraband material, but for refusal to disclose how he had obtained it, and that he had received no notice or hearing on the charges for which he had ostensibly been punished. Thus, he contended that he had been deprived of his good-conduct-time credits without due process of law. After a hearing, the District Court held that Rodriguez' suit had properly been brought under the Civil Rights Act, that the habeas corpus claim was “merely a proper adjunct to insure full relief if [Rodriguez] prevails in the dominant civil rights claim,” 307 F. Supp. 627, 628-629 (1969), and that therefore Rodriguez was not required to exhaust his state remedies, as he would have had to do if he had simply filed a petition for habeas corpus. On the merits, the District Court agreed with Rodriguez that the questioning of him by prison officials related solely to the issue of how he had obtained the contraband" } ]

[ { "docid": "9793741", "title": "", "text": "to be accorded some inferi- or status. In our view, the Morris Rules, as an agreement voluntarily entered into between the State and a class of inmates, is no less capable of conferring a protectible liberty interest on a prison inmate than a piece of paper signed by the inmate and a DOC official. C Having concluded that the Emergency Provisions of the Morris Rules endowed inmates at the ACI, Rodi included, with a liberty interest in remaining in the general prison population, we turn next to the question of what process was due. In Hewitt, the Court held that, at a minimum, an inmate placed in administrative segregation should be provided with “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate may wish] to submit, within a reasonable time after confining him to administrative segregation.” 459 U.S. at 477, 103 S.Ct. at 874. The Court stressed that the process due in such a situation was not elaborate: An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. Id. at 476, 103 S.Ct. at 874 (footnote omitted); see also Parenti, 727 F.2d at 25. While the Hewitt Court regarded as constitutionally sound procedures whereby an inmate received notice of the charges against him within one day of his alleged misconduct and a hearing within five days of his transfer, it eschewed any attempt to craft an inflexible time line. See Hewitt, 459 U.S. at 477, 103 S.Ct. at 874. The Court announced, instead, the more general standard that the opportunity to be heard “must occur within a reasonable time following an inmate’s" }, { "docid": "169870", "title": "", "text": "in such a grossly negligent manner; but, assuming it did, this Court could be obligated to proceed on the merits of Horne’s complaint. Such a prolonged administrative detention can form the basis of a § 1983 due process claim. The law clearly establishes that due process requires that an inmate confined to administrative segregation be afforded “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Although the opportunity to be heard may be satisfied by “an informal, non-adversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wished to submit,” id. at 472, 103 S.Ct. 864, that opportunity must be provided within a reasonable time of the commencement of administrative segregation. See id., Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995). If the first hearing truly is a “nullity,” then Horne had no opportunity to be heard prior to the second hearing. See Gittens v. LeFevre, 891 F.2d 38, 41 (2d Cir.1989) (“The sole opportunity to be heard on an inmate’s administrative confinement is at a disciplinary hearing, where the ultimate issue of guilt or innocence will be determined.”) (citing N.Y. Comp.Codes R. & Regs. tit. 7, §§ 253.1-253.9). While we have not yet fixed a precise time period within which a hearing on administrative confinement must be held, see Green v. Bauvi, 46 F.3d 189, 195 (2d Cir.1995); Russell v. Coughlin, 910 F.2d 75, 79 (2d Cir.1990), Horne’s 148-day confinement prior to the second hearing quite plainly exceeds all boundaries of reasonableness. See Russell, 910 F.2d at 79 (denying qualified immunity to prison officials for holding an inmate in SHU confinement for 10 days without a hearing in violation of New York’s seven-day rule). Hence, it could not be objectively reasonable for respondents to believe 148 days of administrative confinement, without an opportunity to be heard, respected petitioner’s Fourteenth Amendment due process rights. As a result, qualified immunity would not" }, { "docid": "15064580", "title": "", "text": "PER CURIAM. Roosevelt Hayes, an Arkansas state prison inmate, appeals from the district court’s order granting the defendant’s motion for summary judgment. Hayes brought this 42 U.S.C. § 1983 action alleging that he was denied due process when he was assigned to administrative segregation without a preassignment hearing. He also claims that he was unconstitutionally denied a class promotion and meritorious good time. Although the district court properly held that Hayes was not denied due process, we believe the district court erred in granting the defendant’s motion for summary judgment on Hayes’ claim concerning denial of class promotion and good time. Accordingly, we affirm in part and reverse in part. I. DUE PROCESS CLAIM. In December, 1980, Hayes was transferred to the Florida Department of Correction through the Interstate Correction Compact and was placed in the general prison population. Before his transfer to Florida, Hayes had been housed in administrative segregation in Arkansas. Hayes requested to be returned to Arkansas, and this request was granted. Upon his return to Arkansas, Hayes was immediately returned to administrative segregation. Fifteen days later, the Classification Committee held a hearing and determined that Hayes should remain in administrative segregation. Initially, we observe that Hayes had a proteetible liberty interest in being assigned to the general prison population upon his return to Arkansas. Administrative Regulation § 836 of the Arkansas Department of Correction creates an expectation that Arkansas inmates will not be confined to administrative segregation until one of the conditions in the regulations exists. Finney v. Mabry, 528 F.Supp. 567, 570 (E.D.Ark.1981). Having determined that the state created a protectible liberty interest, we must next decide whether the process afforded Hayes satisfied the minimum requirements of due process. “Due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). Under the circumstances of this case, we believe Hayes received adequate due" }, { "docid": "15064581", "title": "", "text": "administrative segregation. Fifteen days later, the Classification Committee held a hearing and determined that Hayes should remain in administrative segregation. Initially, we observe that Hayes had a proteetible liberty interest in being assigned to the general prison population upon his return to Arkansas. Administrative Regulation § 836 of the Arkansas Department of Correction creates an expectation that Arkansas inmates will not be confined to administrative segregation until one of the conditions in the regulations exists. Finney v. Mabry, 528 F.Supp. 567, 570 (E.D.Ark.1981). Having determined that the state created a protectible liberty interest, we must next decide whether the process afforded Hayes satisfied the minimum requirements of due process. “Due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). Under the circumstances of this case, we believe Hayes received adequate due process protection. Initially, Hayes was assigned to administrative segregation because he was a threat to security and because he was a danger to the other inmates, and therefore it appears that the prison officials acted reasonably in placing him in administrative segregation immediately upon his return to Arkansas. Moreover, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that an inmate has received due process in the context of an assignment to administrative segregation if he received “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishes to submit, within a reasonable time after confining him to administrative segregation.” Id. at 472, 103 S.Ct. at 872. The Court held that, under the circumstances of that case, a hearing five days after the inmate had been confined to administrative segregation was reasonable and satisfied the requirements of due process. Id. at 477,103 S.Ct. at 874. II. MERITORIOUS GOOD TIME CLAIM. Hayes also contends that he was unconstitutionally denied the" }, { "docid": "22901554", "title": "", "text": "New York regulations require appointment of a Review Officer to review misbehavior reports and the status of inmates in keeplock. N.Y.Comp.Code R. & Regs. tit. 7, § 251-2.2 (1992). In this case, unlike Gittens, Shamsid-Deen was given an opportunity to write to a responsible official, Cunningham, who was the Acting Deputy Superintendent for Security. Indeed, Shamsid-Deen concedes that he submitted a written complaint to Cunningham asserting the impropriety of his administrative confinement, but he contends that he did not receive a response from Cunningham. Although we recognize that a response would have been thoughtful, due process does not require such a response. As the Supreme Court held in Hewitt, the process that is due to an inmate confined to keeplock is “an informal, non-adversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wished to submit, within a reasonable time after confining him to administrative segregation.” 459 U.S. at 472, 103 S.Ct. at 872 (emphasis added). In our view, mandating that prison officials issue a response under these circumstances would be tantamount to inferring that, where a response has not been issued, the responsible officials have not considered the complaint. In keeping with our traditional and well founded deference to prison officials in their administration of the prison, we refuse to draw such an inference in the absence of any other evidence that the confined inmate’s complaint has been ignored. Accordingly, we conclude that Shamsid-Deen’s opportunity to write to Cunningham afforded him a constitutionally adequate opportunity to be heard regarding his administrative confinement, and we therefore need not address the magistrate judge’s additional conclusion that the disciplinary hearing itself constituted an adequate opportunity to be heard. We next consider the due process requirement that the opportunity to be heard occur within a reasonable time after the imposition of keeplock. Hewitt, 459 U.S. at 472, 103 S.Ct. at 871; Gittens, 891 F.2d at 41. Here, Shamsid-Deen himself acknowledges that he wrote to Cunningham on August 11, the day on which his administrative confinement commenced. This opportunity came within the reasonable time requirement. Moreover, we are not" }, { "docid": "18780948", "title": "", "text": "the district court granted final summary judgment in defendant’s favor. II. DISCUSSION We review a grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). We must determine whether there exists any genuine issue of material fact and must review the district court’s application of substantive law. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984). Appellant claims that he has a liberty interest in remaining within the general prison population. In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that the Constitution itself does not give prison inmates that type of liberty interest. Id. at 468, 103 S.Ct. at 869. The Court stated, however, that liberty interests protected by the Due Process Clause of the Constitution may be created by state law. Id. at 472, 103 S.Ct. at 871 (finding that Pennsylvania had created such rights by the mandatory language used in the correctional statutes). But here, unlike the Pennsylvania state law in Helms, none of the statutes or regulations promulgated by the Arizona legislature or state correctional officials concerning administrative segregation contain the “mandatory language” found to be controlling in Helms. See Ariz.Admin.Comp. R5-1-201 to 5-1-607. Therefore we think it unlikely that state law created a liberty interest in remaining within the general prison population. Cf. Meachum v. Fano, 427 U.S. 215, 223-25, 96 S.Ct. 2532, 2537-39, 49 L.Ed.2d 451 (1976). Moreover, the appellant was afforded the required “due process” with respect to his placement in administrative segregation. That is, appellant was provided “an informal, nonadver-sary review of the information supporting [his] administrative confinement, including whatever statement [he] cared to submit, within a reasonable time after confining him to administrative segregation.” Helms, 459 U.S. at 472, 103 S.Ct. at 871. This contention, therefore, that due process was denied him when he was placed in a segregative unit of the prison, is unsubstantiated. Appellant’s claim with respect to good-time credits is well-founded, however. Appellee virtually concedes that Arizona created a liberty interest in the receipt of good-time credits through its use of “mandatory" }, { "docid": "9841784", "title": "", "text": "the records, restore his lost time, and direct a review of his classification status. In addition to this, his appeal to the Circuit Court for Baltimore City was successful, and he obtained back pay plus Industrial and Special Project Time Credits for the time that he was unable to work in the Print Shop because of his confinement to segregation. In the process, he convinced the Circuit Court of Baltimore City to adopt a substantial evidence rule, which is not required by Hill in a constitutional challenge to prison disciplinary procedures. Thus, appellant was restored to his prior status, his record of conviction by the hearing officer was expunged, and he received back pay for the time he missed from work. He spent time in segregation, but Helms states: “[Administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Helms, 459 U.S. at 468, 103 S.Ct. at 870. Helms also sets minimum due process standards for administrative confinement: “[Petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wishes to submit, within a reasonable time after confining him to administrative segregation.” Id., 459 U.S. at 472, 103 S.Ct. at 872. Later, it concluded: We think an informal, nonadversary evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him. An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. This informal procedure permits a reasonably" }, { "docid": "21598845", "title": "", "text": "administrative segregation.” 459 U.S. at 476, 103 S.Ct. at 874. “This due process requirement may be satisfied by ‘an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including what ever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.’ ” Gittens, 891 F.2d at 41 (quoting Helms, 459 U.S. at 472, 103 S.Ct. at 871-72). Defendants argue that Russell’s release on his tenth day of confinement satisfied whatever procedural protections Russell was entitled to under Helms. Even if defendants’ release of Russell could be treated as somehow mooting the requirements of notice and an opportunity to be heard, the question remains whether defendants’ actions occurred within a “reasonable time.” What is considered a “reasonable time” will depend upon the particular situation being examined. In Helms, for example, the Court found reasonable an initial delay of five days before review of an inmate’s administrative confinement when the delay was necessary to conduct an investigation of misconduct charges. Id. at 477 & n. 9, 103 S.Ct. at 874 & n. 9; see also Gittens, 891 F.2d at 41 (finding seven-day delay unreasonable). In the present case defendants have offered no evidence of circumstances justifying their ten-day delay, and they acknowledge that the length of Russell’s confinement was a result of their inadvertence. Under these circumstances, we conclude that defendants’ release of Russell on his tenth day of confinement did not occur within a “reasonable time.” In sum, since the deprivation of Russell’s liberty did not occur pursuant to constitutionally adequate procedures provided within a reasonable time, he was denied due process. Ill Defendants suggest that even if they did violate Russell’s due process rights, they are entitled to qualified immunity. State officials performing discretionary functions are shielded from liability for civil damages in § 1983 actions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Even when such rights are clearly established, qualified immunity also" }, { "docid": "22945427", "title": "", "text": "hold that [plaintiffs] discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Id. at —, 115 S.Ct. at 2301. Thus, Sandin may be read as calling into question the continuing viability of our cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation. For purposes of the present appeal, however, we need not resolve whether Rodriguez had a protected liberty interest under the new Sandin standard. For we believe that even if he did, it was objectively reasonable for Lt. Alcock to believe Rodriguez had received all the process he was due. Assuming the existence of a liberty interest, due process requires that an inmate confined to administrative segregation must be afforded “some notice of the charges against him and an opportunity to present his views to the prison officials charged with deciding whether to transfer him to administrative segregation.” Hewitt, 459 U.S. at 476, 103 S.Ct. at 873-74. This requirement may be satisfied by “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.” Id. at 472, 103 S.Ct. at 872. What is a “reasonable time” must “tak[e] into account the relatively insubstantial private interest at stake and the traditionally broad discretion of prison officials.” Id. at 476 n. 8, 103 S.Ct. at 874 n. 8. In the instant case, Rodriguez was given notice at the time of his administrative confinement that it was due to the report of his mother passing an unknown object through the prison fence to an unknown inmate. Lt. Alcock contends that his questioning of Rodriguez on each day of plaintiffs confinement satisfied the requirement that Rodriguez have an opportunity to be heard on whether segregation was appropriate. We agree with the district court that a question exists as to whether Lt. Alcock’s questioning of Rodriguez allowed plaintiff an opportunity to be heard, and, were this issue determinative, we would affirm the denial" }, { "docid": "15064585", "title": "", "text": "an opportunity to appear before and address said Committee and if the inmates: 1. Indicate a chronic inability to adjust in the general prison population. 2. Constitute a serious threat to the security of the institution. 3. Require maximum protection from themselves or if others require maximum protection from them. Ark.Admin.Reg. § 836 (1981). Although Hayes was housed in administrative segregation before his transfer to Florida, the transfer released him from administrative segregation. Hayes was transferred under the Interstate Corrections Compact, which states that an inmate “confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state * * *.” Ark.Stat.Ann. § 46-1402, Art. IV, f (c) (Repl.1977). Therefore, Hayes’s release into the general prison population in Florida was equivalent to a release into the general prison population in Arkansas, and accordingly the prison officials were required to follow the guidelines in Administrative Regulation § 836 before reassigning Hayes to administrative segregation. . The defendants argue that, because the Classification Committee determined that Hayes should remain in administrative segregation after the hearing, Hayes was not harmed by the “slight delay.” However, this argument fails to consider that “[mjany substantive constitutional guarantees may be violated without accompanying consequential or ‘actual’ injury. If consequential injury were the touchstone for substantial compensatory awards, many blatant constitutional violations would remain unredressed.” Herrera v. Valentine, 653 F.2d 1220, 1228 n. 7 (8th Cir.1981). See also Villanueva v. George, 659 F.2d 851, 855 (8th Cir.1981); Tatum v. Houser, 642 F.2d 253, 255 (8th Cir.1981) (\"deprivations of certain constitutional rights, even without a showing of actual injury, may be vindicated, at a minimum, by making such actionable for nominal damages”) Thus, the issue is whether Hayes received the process due him under the fourteenth amendment and not whether Hayes was harmed by the delay." }, { "docid": "7559979", "title": "", "text": "regulations. 2. Process required Because Black had a liberty interest in remaining in the general prison population, prison officials had to afford him due process in order to deprive him of that right. Hewitt makes it clear, however, that the procedural due process required before one may be deprived of a liberty interest is governed by federal constitutional law and not state law, and that minimal process is required for segregation in the prison context because prison officials must be accorded “ ‘wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order....’” 459 U.S. at 472, 103 S.Ct. at 872 (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979)). Prison officials are “obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Id. The Hewitt Court held that an inmate need only receive some notice of the charges against him and an opportunity to present his views either in writing or in person to the prison official, and a review by the decision-maker of the charges and the available evidence. Id. at 476, 103 S.Ct. at 874. This process must occur within a “reasonable time” following an inmate’s transfer, judged from the view of the “insubstantial private interest” of the inmate and the “traditionally broad discretion” of prison officials. Id. at 476 n. 8, 103 S.Ct. at 874 n. 8. However, administrative segregation may not be used as “pretext for indefinite confinement of an inmate.” Id. at 477 n. 9, 103 S.Ct. at 874 n. 9. Therefore, “[p]rison officials must engage in some sort of periodic review of the confinement of such inmates. This review will not necessarily require that prison officials permit the submission of any additional evidence or statements.” Id. Thus, although Hewitt involved segregation of an inmate for his role in a prison riot, the case holds that regardless of the reason for the segregation, inmates" }, { "docid": "15064584", "title": "", "text": "changed on account of any action or proceeding in which he could have participated if confined in any appropriate institution of the sending state located within such state. Ark.Stat.Ann. § 46-1402 (Repl.1977) (emphasis added). In light of this statute, Hayes is entitled to good time and other benefits he earned while in Florida as if he had earned them in Arkansas. Because this is a habeas corpus claim, and because the claim was not exhausted in state court, we vacate this portion of the district court’s opinion to give Hayes an opportunity to claim this good time in state court. Accordingly, we affirm the district court’s grant of summary judgment concerning Hayes’s due process claim, and reverse and vacate the grant of summary judgment concerning Hayes’s meritorious good time claim. . Administrative Regulation § 836 provides: Segregation is a classification category for inmates in institutions. Inmates may be placed in a segregation classification by the Institutional Classification Committee by a majority vote of the Committee after a hearing at which the inmates must be given an opportunity to appear before and address said Committee and if the inmates: 1. Indicate a chronic inability to adjust in the general prison population. 2. Constitute a serious threat to the security of the institution. 3. Require maximum protection from themselves or if others require maximum protection from them. Ark.Admin.Reg. § 836 (1981). Although Hayes was housed in administrative segregation before his transfer to Florida, the transfer released him from administrative segregation. Hayes was transferred under the Interstate Corrections Compact, which states that an inmate “confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state * * *.” Ark.Stat.Ann. § 46-1402, Art. IV, f (c) (Repl.1977). Therefore, Hayes’s release into the general prison population in Florida was equivalent to a release into the general prison population in Arkansas, and accordingly the prison officials were required to follow the guidelines in Administrative Regulation § 836 before reassigning Hayes to administrative segregation. . The defendants argue that, because the Classification Committee determined" }, { "docid": "15064583", "title": "", "text": "class promotion and good time he earned during his stay in Florida. Although the district court properly recognized that this claim was more in the nature of a petition for a writ of habeas corpus, see, e.g., Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973), the Court dismissed the claim as meritless. The district court reasoned that because Ark.Stat.Ann. § 46-120.1 (Supp.1983), states that “ ‘Meri torious Good Time’ shall be awarded * * * for good discipline, good behavior, work practices and job responsibilities within the institutions of the [Arkansas] Department of Corrections,” the provision did not apply to good time Hayes earned in another state. We disagree. Hayes was transferred to Florida pursuant to the Interstate Correction Compact, and Article IV, paragraph (h) of the Compact provides: Any inmate confined pursuant to the terms of this compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his status changed on account of any action or proceeding in which he could have participated if confined in any appropriate institution of the sending state located within such state. Ark.Stat.Ann. § 46-1402 (Repl.1977) (emphasis added). In light of this statute, Hayes is entitled to good time and other benefits he earned while in Florida as if he had earned them in Arkansas. Because this is a habeas corpus claim, and because the claim was not exhausted in state court, we vacate this portion of the district court’s opinion to give Hayes an opportunity to claim this good time in state court. Accordingly, we affirm the district court’s grant of summary judgment concerning Hayes’s due process claim, and reverse and vacate the grant of summary judgment concerning Hayes’s meritorious good time claim. . Administrative Regulation § 836 provides: Segregation is a classification category for inmates in institutions. Inmates may be placed in a segregation classification by the Institutional Classification Committee by a majority vote of the Committee after a hearing at which the inmates must be given" }, { "docid": "22945428", "title": "", "text": "by “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.” Id. at 472, 103 S.Ct. at 872. What is a “reasonable time” must “tak[e] into account the relatively insubstantial private interest at stake and the traditionally broad discretion of prison officials.” Id. at 476 n. 8, 103 S.Ct. at 874 n. 8. In the instant case, Rodriguez was given notice at the time of his administrative confinement that it was due to the report of his mother passing an unknown object through the prison fence to an unknown inmate. Lt. Alcock contends that his questioning of Rodriguez on each day of plaintiffs confinement satisfied the requirement that Rodriguez have an opportunity to be heard on whether segregation was appropriate. We agree with the district court that a question exists as to whether Lt. Alcock’s questioning of Rodriguez allowed plaintiff an opportunity to be heard, and, were this issue determinative, we would affirm the denial of summary judgment. But due process is violated only when the opportunity to be heard is not provided within a reasonable time of the commencement of administrative segregation. Hence, if it would have been reasonable to provide that opportunity after the third day of confinement, the point at which Rodriguez was released, the dispute as to whether he was heard before that time is not material. Moreover, if it was objectively reasonable for Lt. Alcock to believe that such was the case, qualified immunity is warranted. In Hewitt, the Supreme Court held a five-day period between placement in administrative segregation and an opportunity to be heard was reasonable. It noted prison security is a matter best left to the discretion of prison officials, that in the prison context rumor or reputation is enough to create a security risk until it is disproved, and that the progress of the investigation will play a role in prison administrators’ decisionmak-ing. See 459 U.S. at 474, 477 n. 9, 103 S.Ct. at 872-73, 874 n. 9. None of our" }, { "docid": "9841775", "title": "", "text": "[100 S.Ct. 1254, 1264, 63 L.Ed.2d 552] (1980). It is plain that the transfer of an inmate to less amenable and more restric tive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence. The phrase “administrative segregation,” as used by the state authorities here, appears to be something of a catchall: it may be used to protect the prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer. [Statute omitted.] Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration. This conclusion finds ample support in our decisions regarding parole and good-time credits. Both these subjects involve release from institutional life altogether, which is a far more significant change in a prisoner’s freedoms than that at issue here, yet in Greenholtz and Wolff we held that neither situation involved an interest independently protected by the Due Process Clause. These decisions compel an identical result here. Our court has not decided the issue of the use of unsworn statements of anonymous informants. However, in Hayes v. Thompson, 726 F.2d 1015 (4th Cir.1984), we directed the district court on remand to consider this question together with four other due process issues. The record does not reflect what happened to this issue on remand. The first case addressing the issue of unsworn statements of anonymous informants was Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970), where the court approved a number of rules that had been agreed to by the parties in a class action brought on behalf of the inmates of the Adult Correctional Institutions of Rhode Island. However, these rules relate to “substantial evidence,” which is a higher standard than the “some evidence” rule established in Superintendent, Massachusetts Correctional Institution at Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), which held that to comport with minimum requirements of due process, the findings of a Prison Disciplinary Board revoking a prisoner’s good time must" }, { "docid": "169869", "title": "", "text": "December 13, 1984 he was confined in SHU while awaiting his disciplinary hearing. The first hearing properly was held within seven days of the commencement of his confinement. Yet this hearing eventually was reversed and a rehearing conducted on May 9, 1985 (the second hearing), by which time Horne had remained continuously confined in isolation for almost five months. The record does not show that either the Commissioner or his designee authorized the Department of Correctional Services to hold Horne beyond the seven days pre-hearing detention period. See N.Y. Comp.Codes R. & Regs. tit. 7, § 251D.l(a). Thus, once December 20 passed, we must accept either one of two possibilities explaining Horne’s subsequent detention: (1) his detention was administrative and the Department ignored § 251D.l(a)’s timeliness requirement by holding the second hearing 148 days after initially placing Horne in solitary confinement; or (2) his detention was punitive and Horne began to serve his sentence resulting from the first heáring. C. Nothing in the record would suggest the Department violated § 251D.l(a) and its timeliness requirement in such a grossly negligent manner; but, assuming it did, this Court could be obligated to proceed on the merits of Horne’s complaint. Such a prolonged administrative detention can form the basis of a § 1983 due process claim. The law clearly establishes that due process requires that an inmate confined to administrative segregation be afforded “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Although the opportunity to be heard may be satisfied by “an informal, non-adversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wished to submit,” id. at 472, 103 S.Ct. 864, that opportunity must be provided within a reasonable time of the commencement of administrative segregation. See id., Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995). If the first hearing truly is a “nullity,” then Horne had no opportunity to be" }, { "docid": "18685377", "title": "", "text": "the plaintiff was advised that he was being placed in administrative confinement because there was reason to believe that his behavior rendered him a threat to the community. The defendants do not contend, however, that the plaintiff was informed of the specific nature of the charges against him (i.e., his purported threat to Mrs. Pius) during the 14-day period of his confinement. Notwithstanding this deficiency, the defendants assert that regardless whether the plaintiff had a liberty interest not to be placed in a SHU for a period of 14 days, the notice and immediate opportunity to be heard with which he was provided was sufficient to satisfy due process. In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court, upon finding a liberty interest in administrative confinement to have been created by the state as a result of the mandatory language and concomitant substantive predicates of the prison regulations at issue, see id., held that an inmate placed in administrative confinement is entitled to “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476, 103 S.Ct. at 874. A comprehensive hearing, however, is not required; rather, “[t]his due process requirement may be satisfied by ‘an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.’” Gittens v. LeFevre, 891 F.2d 38, 41 (2d Cir.1989) (quoting Hewitt, 459 U.S. at 472, 103 S.Ct. at 871). In the instant ease, the notice of confinement provided to the plaintiff reads, in pertinent part, as follows: QUEENSBORO CORRECTIONAL FACILITY ADMINISTRATIVE SEGREGATION NOTICE TO INMATE SPECIAL HOUSING PROTECTIVE ADMISSION CONSIDERATION To: QUARTARARDO [sic], MICHAEL 86-B-0085 Date: 1/30/92 The following information leads the staff of this facility to believe that protective admission to a special housing unit is necessary in your case. PAROLE HAS ADVISED FACILITY ADMINISTRATION THAT THERE IS REASON TO BELIEVE THAT BEHAVIOR ON INMATE’S PART MAY" }, { "docid": "15064582", "title": "", "text": "process protection. Initially, Hayes was assigned to administrative segregation because he was a threat to security and because he was a danger to the other inmates, and therefore it appears that the prison officials acted reasonably in placing him in administrative segregation immediately upon his return to Arkansas. Moreover, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that an inmate has received due process in the context of an assignment to administrative segregation if he received “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishes to submit, within a reasonable time after confining him to administrative segregation.” Id. at 472, 103 S.Ct. at 872. The Court held that, under the circumstances of that case, a hearing five days after the inmate had been confined to administrative segregation was reasonable and satisfied the requirements of due process. Id. at 477,103 S.Ct. at 874. II. MERITORIOUS GOOD TIME CLAIM. Hayes also contends that he was unconstitutionally denied the class promotion and good time he earned during his stay in Florida. Although the district court properly recognized that this claim was more in the nature of a petition for a writ of habeas corpus, see, e.g., Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973), the Court dismissed the claim as meritless. The district court reasoned that because Ark.Stat.Ann. § 46-120.1 (Supp.1983), states that “ ‘Meri torious Good Time’ shall be awarded * * * for good discipline, good behavior, work practices and job responsibilities within the institutions of the [Arkansas] Department of Corrections,” the provision did not apply to good time Hayes earned in another state. We disagree. Hayes was transferred to Florida pursuant to the Interstate Correction Compact, and Article IV, paragraph (h) of the Compact provides: Any inmate confined pursuant to the terms of this compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his status" }, { "docid": "18685378", "title": "", "text": "charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476, 103 S.Ct. at 874. A comprehensive hearing, however, is not required; rather, “[t]his due process requirement may be satisfied by ‘an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.’” Gittens v. LeFevre, 891 F.2d 38, 41 (2d Cir.1989) (quoting Hewitt, 459 U.S. at 472, 103 S.Ct. at 871). In the instant ease, the notice of confinement provided to the plaintiff reads, in pertinent part, as follows: QUEENSBORO CORRECTIONAL FACILITY ADMINISTRATIVE SEGREGATION NOTICE TO INMATE SPECIAL HOUSING PROTECTIVE ADMISSION CONSIDERATION To: QUARTARARDO [sic], MICHAEL 86-B-0085 Date: 1/30/92 The following information leads the staff of this facility to believe that protective admission to a special housing unit is necessary in your case. PAROLE HAS ADVISED FACILITY ADMINISTRATION THAT THERE IS REASON TO BELIEVE THAT BEHAVIOR ON INMATE’S PART MAY HAVE CONSTITUTED A THREAT TO THE COMMUNITY. PENDING REVIEW AND RECOMMENDATION BY PAROLE, PLACEMENT IN MINIMUM SECURITY UNIT IS NOT APPROPRIATE. If you wish to consent to voluntary protective admission to a special housing unit, please sign in the appropriate space on the reverse of this form. If you do not wish to consent to protective admission to a special housing unit, please provide the Interviewer with any statement you wish to make concerning the above information. You may also present immediately in writing any explanation or information which you want to be considered by the Superintendent in regard to this matter. Any statement you make may not be used against you in a criminal proceeding. The Superintendent will review the above information and any statement you wish to submit and make a determination concerning your assignment. You will be notified. Pl.’s Second Am.Compl.Ex. E. The plaintiff refused to execute the consent to confinement indicated in the form. The plaintiff contends that during the period of his confinement to the SHU, he was not notified" }, { "docid": "9347262", "title": "", "text": "the very different situation presented by a disciplinary proceeding in a state prison.’ Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct. at 2976. ‘Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). These considerations convince us that petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Hewitt, 459 U.S. at 472, 103 S.Ct. at 872. The language stating that prison officials were required to consider “whatever statement [the prisoner] wished to submit” refers to the content of the statement rather than its manner of presentation, and thus falls far short of directing that the authorities must consider the statement in whatever form the prisoner wished to submit it. The Court merely observed that the prisoner must be given an opportunity to present his statement of the facts, but did not mandate that the statement be in either oral or written form. The Court stated: “An inmate must merely receive ... an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decision maker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.” Id. 459 U.S. at 476, 103 S.Ct. at 874 (emphasis added). Thus, under Hewitt the prerogative of determining whether the statement shall be received in oral or written form rests with prison authorities (providing the inmate has the capability of presenting either of them). Wheeler’s theory that Wolff mandates that his due process right entitles" } ]

[ { "docid": "8319072", "title": "", "text": "Thermal Corp., 730 F.Supp. 126, 135 (N.D.Ill.1989); Marine Midland, 664 F.2d at 903. It is also generally accepted that the fiduciary shield doctrine does not apply when courts are willing to disregard the corporate entity on the theory that the individual is the alter ego of the corporation. Stuart, 772 F.2d at 1197. Plaintiffs, however, have not alleged that Mr. O’Brien is the alter ego of the corporation and that the Court should, therefore, disregard the corporate entity and attribute to Mr. O’Brien the contacts of the corporation. Nor have Plaintiffs argued that Mr. O’Brien performed acts designed to advance his own rather than his employer’s interests. Plaintiffs argue that Mr. O’Brien subjected himself to this Court’s jurisdiction by engaging in activities outside the State that had “reasonably foreseeable consequences in the State.” Prejean v. Sonatrack, Inc., 652 F.2d 1260, 1268 (5th Cir.1981). Specifically, Plaintiffs allege that Mr. O’Brien, acting as an account executive at Dean Witter Reynolds, Inc., in Reno, Nevada, initiated contacts between himself and Mr. Bhanubandh; that he was entrusted with $350,000 of Texas National Realty Corporation’s money; and that he negligently handled such money so as to make possible its fraudulent conversion by other Defendants, who were acting separately and in concert among themselves. Plaintiffs' argument for personal jurisdiction hinges on the proposition that Mr. O’Brien “must or reasonably should have known he was handling the funds of a Texas corporation for purposes of satisfying a contract which required the return of stock to a Texas corporation.” Plaintiffs further argue that, “[i]t follows reasonably that he should have known the mishandling of those funds could have injurious consequences on a Texas corporation.” Defendant O’Brien filed an affidavit that alleges: (1) he is domiciled in Nevada and has not consented to be sued in Texas; (2) he was born in Boston, Massachusetts in 1949, graduated from high school in Massachusetts, and earned his college degree from Florida State University in 1970; (3) in 1977, he moved to Reno, Nevada, where he was first employed as a county fiscal officer, and then, in 1978, began his present employment" } ]

[ { "docid": "11910479", "title": "", "text": "accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for any original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. .17 U.S.C. § 103 provides: (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Subject to sections 107 through 120, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords 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 literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, 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. . 17 U.S.C. § 106 provides: . Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340," }, { "docid": "12868252", "title": "", "text": "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (1) literary works; (2) musical works, including accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102. Section 103 of the Copyright Act provides: (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. 17 U.S.C. § 103. . Section 106 of the Copyright Act provides: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords 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 literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic," }, { "docid": "22904339", "title": "", "text": "the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords 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 literary, musical, dramatic, or choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, or 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. . Interference with the personal property of another which does not rise to the level of conversion may constitute the lesser tort of trespass to chattels. See Restatement (Second) of Torts §§ 216-222 (1965).' Cross-appellants at one point hinted at such a claim. After Judge Owen dismissed the state law counts in their complaint, they sought permission to make a second amendment adding claims of, inter alia, “trespassing upon plaintiffs’ rights to its business* documents.... ” See note 1, supra. Their motion to amend was denied, and the issue has not been raised here. Cross-appellants could not succeed on this claim in any event, since liability for trespass to chattels exists only upon a showing of actual damage to the property interfered with. F. Harper & F. James, supra, § 2.3. . This section reads in pertinent part: § 102. Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; ****** . 17 U.S.C. § 102(b) reads: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form" }, { "docid": "14766052", "title": "", "text": "as such a determination would be inconsistent with the bulk of cases on this issue. See, e.g., 4 Nimmer § 13.07. Finally, Carson attempts to rely on Peer Int’l, 887 F.Supp. at 567. In that case, which concerned the alleged infringement of copyrighted material on vinyl phonograph records, the court held that although the plaintiffs • had knowledge of the defendants' infringing acts, the defense of estoppel failed, in part because the defendants failed to show detrimental reliance. Thus, the court held that defendants “cannot escape the fact that [they] continued to make and distribute the infringing phonographs for at least six months after suit was filed when any claim of detrimental reliance should have ended.\" Id. Carson argues that because Dynegy continued to use 24HA and, arguably, introduced a derivative work after this lawsuit was filed, Dynegy cannot likewise claim estoppel. Yet, Dynegy's estoppel defense, unlike that of the defendants in Peer Int’l, matured long before Carson was terminated. See Quinn, 23 F.Supp.2d at 753. Furthermore, Peer Int’l is factually dissimilar to the instant case, as it concerned the manufacture of vinyl records, Peer Int’l, 887 F.Supp. at 567, not the ongoing use of a computer program on which the user had relied for a substantial period of time. . We apply Texas law to Carson's conversion claim. See n. 7, supra. . Section 102 of the Copyright Act provides that (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of" }, { "docid": "14766053", "title": "", "text": "case, as it concerned the manufacture of vinyl records, Peer Int’l, 887 F.Supp. at 567, not the ongoing use of a computer program on which the user had relied for a substantial period of time. . We apply Texas law to Carson's conversion claim. See n. 7, supra. . Section 102 of the Copyright Act provides that (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102. . The district court relies solely on Barbour v. Head, 178 F.Supp.2d 758 (S.D.Tex.2001), for the proposition that state law claims of conversion are preempted by federal copyright law. Barbour, however, did not address conversion claims regarding physical, tangible property, which is in issue here. Barbour, 178 F.Supp.2d at 759-60. Accordingly, Barbour is not applicable to Carson's allegation that Dynegy wrongfully withheld tangible copies of 24HA. Equally unpersuasive is Dynegy’s similar argument that it cannot be \"guilty” of converting a worksheet that it had a right to use. Indeed, Carson's first conversion allegation concerns tangible property, not intellectual property. Even if it is assumed, arguendo, that Dynegy does own a copyright in 24HA, such intangible rights would not preclude a claim of conversion regarding tangible property. To make an appropriate comparison, even if counter-culture author Abbie Hoffman owns the copyright to his hippie treatise entitled Steal This Book, such intellectual" }, { "docid": "22247894", "title": "", "text": "alone suffices for the telecasts to be copyrightable. . Section 102(a) provides: Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. 17 U.S.C. § 102(a) (emphasis added). . \"Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. 17 U.S.C. § 101. . For example, the Clubs adduced evidence that the Players are acutely aware of the fact that major league baseball games are televised, and that the Players understand that television revenues have a bearing on the level of the salaries that they receive. . The Players rely on the common law maxim of construction expressio unius est exclusio alter-ius, under which the expression of one right implies the exclusion of another right that is not expressed. This maxim is, however, inapplicable to ascertaining whether the parties have expressly agreed in a signed, written instrument that the Players own the copyright in the telecasts of the games. . The Players point to the absence of a provision expressly granting the Clubs the right to televise the games as support for their assertion that they have \"reserved” their rights of publicity in their performances. Nonetheless, there is no need for such an express declaration because under § 201(b) the Clubs are presumed to own the copyright in the works produced by their employees unless the parties expressly agree otherwise in a signed, written" }, { "docid": "15442230", "title": "", "text": "by 17 U.S.C. § 504(b); see Fisher, 794 F.2d at 434 n.2 (using the term “de minim-is” to describe the concept). The reason for the rule is that the “plaintiffs legally protected interest [is] the potential financial return from his compositions which derive from the lay public’s approbation of his efforts.” Krofft, 562 F.2d at 1165 (quoting Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946)). If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive . content. Accordingly, there is no infringement. Other than Bridgeport and the district courts following that decision, we are aware of no case that has held that the de minimis doctrine does not apply in a copyright infringement case. Instead, courts consistently have applied the rule in all cases alleging copyright infringement. Indeed, we stated in dictum in Newton that the rule “applies throughout the law of copyright, including cases of music sampling.” 388 F.3d at 1195 (emphasis added). Plaintiff nevertheless argues that Congress intended to create a special rule for copyrighted sound recordings, eliminating the de minimis exception. We begin our analysis with the statutory text. Title 17 U.S.C. § Í02, titled “Subject matter of copyright: In general,” states, in relevant part: . (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (Emphasis added.) That provision' treats sound recordings identically to all other types of protected works; nothing in the text suggests differential treatment, for any purpose, of sound recordings compared to, say, literary works. Similarly, nothing in the neutrally worded statutory definition of “sound recordings”" }, { "docid": "15391603", "title": "", "text": "This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: (1) to reproduce the work in copies or phonorecords; (2) to prepare derivative works based upon the work; (3) to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) to perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; (5) to display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and (6) in the case of sound recordings, to perform the work publicly by means of a digital audio transmission. See 17 U.S.C. § 106 (Supp.2000). It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. In order to prevail in a copyright infringement action, LAMCO must establish (1) authorship of the songs in question; (2)ownership of copyrights; (3) compliance with the statutory requirements to obtain copyrights; and (4) unauthorized (5) public performance. See Pedrosillo Music, Inc. v. Radio Musical, Inc., 815 F.Supp. 511, 514 (D.P.R.1993). “A determination of ownership is a conclusion of law based on underlying facts. 3 NIMMER [ON COPYRIGHT] § 13.01[A].” Motta v. Samuel Weiser, Inc., 768 F.2d 481, 484 (1st Cir.), cert. denied, 474 U.S. 1033, 106 S.Ct. 596, 88 L.Ed.2d 575 (1985). REGISTRATION Copyright protection begins when an author creates a work by fixing it in a tangible medium of expression. The registration of the copyright is a legal formality. Only in certain circumstances is registration a requirement to obtain copyright protection. When works were copyrighted is of importance in this case. For works published between January 1, 1964 and January 1, 1993, renewal of the copyright is automatic and copyright cannot be lost" }, { "docid": "14283216", "title": "", "text": "Count I, and X-IT has also moved for partial summary judgment on the issue of liability, but not damages, on Count I. Kidde asserts that summary judgment should be granted in its favor on Count I because (1) X-IT did not own any copyright in the photograph at the time of any alleged infringement; (2) apart from the photograph, the elements of X-IT’s cover art that were allegedly infringed do not qualify for copyright protection; (3) there is insufficient similarity between Kidde’s cover art and X-IT’s cover art to constitute copying under the copyright laws; (4) X-IT is not entitled to statutory damages under the Copyright Act because it had not registered any copyright at the time of the alleged infringement; and (5) there is no evidence of any actual damages caused by the alleged infringement. Conversely, X-IT argues that partial summary judgment should be granted in its favor on Count I because (1) X-IT has standing to bring a copyright infringement action against Kidde for both Kidde’s alleged copyright violations at the 1999 National Hardware Show and Kidde’s alleged ongoing copyright violations with respect to Kidde’s commercially available packaging; (2) Kidde has admitted to copying XIT’s photograph and package prior to the 1999 Show without X-IT’s permission; and (3) Kidde’s commercially available packaging is a knock-off of X-IT’s packaging and therefore constitutes an ongoing infringement. The Court will address the issues raised by the parties cross-motions under Count I seriatim. 2. General Standards Copyright protection for original artwork is provided by 17 U.S.C § 102(a). That section states that: (а) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (б) motion pictures and other audiovisual works; (7)" }, { "docid": "11910478", "title": "", "text": "is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works or authorship not fixed in any tangible medium of expression; or ... (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106.... .17 U.S.C. § 102 provides: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for any original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. .17 U.S.C. § 103 provides: (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is" }, { "docid": "13667255", "title": "", "text": ". Amazon urges this court to order that FAC System be joined as a necessary party under Fed.R.Civ.P. 19(a). Amazon contests Plaintiffs’ pursuit of a complaint against Amazon \"despite exhibits to the complaint making clear that the seller of the pillowcases at issue is FAC System.” Dkt. # 8, p. 3 (citing Dkt. # 1, Ex. B at 1 (Screen capture of allegedly infringing product on amazon.com noting that the product is \"[s]old by FAC System LLC and Fulfilled by Amazon”)). Amazon further argues that FAC should be joined as a necessary party because (1) complete relief cannot be accorded among the existing parties and (2) FAC System may have a legally protected interest in the subject of this action. Dkt. #8, n. 1 (citing Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir.1992) (discussing standard for joinder under Rule 19(a)); Fed.R.Civ.P. 19(a)(2) (\"If a person has not been joined as required, the court must order that the person be made a party.”)). Plaintiffs failed to address this issue. . § 102. Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. . § 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of" }, { "docid": "12868251", "title": "", "text": "defendant on the plaintiff's unfair competition claim. See Stromback, 384 F.3d at 300 (\"On appeal, Stromback takes issue only with the district courts dismissal of his claims for commercial misappropriation, misappropriation of trade secrets, and interference with prospective economic advantage claims.”). Although the Stromback court referenced other courts that have dismissed a plaintiff’s misappropriation and unfair competition claims because such claims were based on alleged violations within the purview of the federal copyright laws, contrary to Defendant’s assertion, the Sixth Circuit did not address, directly, whether the plaintiff’s unfair competition claim would be dismissed under 17 U.S.C. § 301 because the issue was not before the court on appeal. Id.; {see Def.’s Mot. Supplement Authorities at 3 (discussing Stromback and stating \"[t]he Sixth Circuit held that 'this claim [of unfair competition and misappropriation] is preempted.’ ”)). . Section 102 of the Copyright Act states: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (1) literary works; (2) musical works, including accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102. Section 103 of the Copyright Act provides: (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of" }, { "docid": "22149224", "title": "", "text": "the rationale that “individual officers, as agents of the corporation would be personally liable to any third person they injured by virtue of their tortious activity even if such acts were performed within the scope of their employment as corporate officers.” Odell v. Signer, 169 So.2d 851, 853-54 (Fla.Ct.App.1964), writ discharged, 176 So.2d 94 (Fla.1965), quoted in Sponsler, supra, at 360. While the general rule is that jurisdiction over an individual cannot be predicated upon jurisdiction over a corporation, courts have recognized an exception to this rule when the corporation is the alter ego of the individual. In these cases, courts attribute a corporation’s contacts with the forum state to an individual defendant for jurisdictional purposes. See, e.g., Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634 (8th Cir.1975); Bamford v. Hobbs, 569 F.Supp. 160 (S.D.Tex.1983); Holfield v. Power Chemical Co., 382 F.Supp. 388 (D.Md.1974); Lawson v. Baltimore Paint & Chemical Corp., 298 F.Supp. 373 (D.Md.1969); Sheard v. Superior Court, 40 Cal.App.3d 207, 114 Cal.Rptr. 743 (1974); Harris v. Arlen Properties, Inc., 256 Md. 185, 260 A.2d 22 (1969); 1 C. Swearingen, Fletcher’s Cyclopedia of the Law of Private Corporations § 41.10 (1983 & Supp.1984); 4 C. Wright, A. Miller & M. Kane, supra, § 1069; Sponsler, supra, at 359-65. The Lakota court considered the following factors in determining whether a corporation was the alter ego of its dominant shareholder: “[A] corporation’s existence is presumed to be separate, but can be disregarded if (1) the corporation is undercapi-talized, (2) without separate books, (3) its finances are not kept separate from individual finances, individual obligations are paid by the corporation, (4) the corporation is used to promote fraud or illegality, (5) corporate formalities are not followed or (6) the corporation is merely a sham.” 519 F.2d at 638; see also 1 C. Swearingen, supra, § 41.10. In Lakota, the Eighth Circuit held that the jury’s finding that the corporation was the individual’s alter ego was supported by ample evidence, including evidence that the individual was the sole shareholder and sole incorporator, that he alone made loans to" }, { "docid": "22631499", "title": "", "text": "from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: “(1) literary works; “(2) musical works, including any accompanying words; “(3) dramatic works, including any accompanying music; “(4) pantomimes and choreographic works; “(5) pictorial, graphic, and sculptural works; “(6) motion pictures and other audiovisual works; and “(7) sound recordings.” Definitions of terms used in § 102(a)(6) are provided by § 101: “Audiovisual works” are “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together -with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” And “motion pictures” are “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” Most commercial television programs, if fixed on film or tape at the time of broadcast or before, qualify as “audiovisual works.” Since the categories set forth in § 102(a) are not mutually exclusive, a particular television program may also qualify for protection as a dramatic, musical, or other type of work. Section 106 provides: “Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: “(1) to reproduce the copyrighted work in copies or phonorecords; “(2) to prepare derivative works based upon the copyrighted work; “(3) to distribute copies or phonorecords 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 literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and “(5) in the case of literary, musical, 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" }, { "docid": "1697965", "title": "", "text": "title annuls or limits any rights or remedies under the common law or statutes of any State with respect to— ****** (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106. . Section 102, 17 U.S.C. § 102, states, in relevant part: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Words of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. . Section 106 states, in relevant part: Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords 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 literary, musical, dramatic, or choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, or 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. . Both NESN and Quincy have brought claims for conversion. The defendants addressed their preemption argument to NESN, although its motion is to dismiss the whole of Count Seven. In view of the fact that the parties did not satisfactorily address the issue of preemption as to Quincy’s claim for conversion, this Court will not address" }, { "docid": "13667256", "title": "", "text": "of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. . § 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. .§ 106. Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords 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 literary, musical, dramatic, and choreographic works, pantomimes, . The Court makes no determination at this time as to whether Plaintiffs’ factual allegations would be sufficient to survive the preemption analysis. As Amazon notes, to survive preemption, Plaintiffs' CPA claim must" }, { "docid": "22631498", "title": "", "text": "programs broadcast free over the airwaves. No issue is raised concerning cable or pay television, or the sharing or trading of tapes. At the trial, the Studios proved 32 individual instances where their copyrighted works were recorded on Betamax VTR’s. Two of these instances occurred after January 1, 1978, the primary effective date of the 1976 Act; all the others occurred while the 1909 Act was still effective. My analysis focuses primarily on the 1976 Act, but the principles governing copyright protection for these works are the same under either Act. Act of Feb. 3,1831, eh. 16, 4 Stat. 436; Act of July 8,1870, §§ 85-111,16 Stat. 212-217; Act of Mar. 4, 1909, 35 Stat. 1075 (formerly codified as 17 U. S. C. § 1 et seq.); Copyright Revision Act of 1976, 90 Stat. 2541 (codified as 17 U. S. C. § 101 et seq. (1982 ed.)). Section 102(a) provides: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: “(1) literary works; “(2) musical works, including any accompanying words; “(3) dramatic works, including any accompanying music; “(4) pantomimes and choreographic works; “(5) pictorial, graphic, and sculptural works; “(6) motion pictures and other audiovisual works; and “(7) sound recordings.” Definitions of terms used in § 102(a)(6) are provided by § 101: “Audiovisual works” are “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together -with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” And “motion pictures” are “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” Most commercial television programs, if fixed on film or" }, { "docid": "2002306", "title": "", "text": "the court therefore remands the action to state court, then the federal court's conclusion that the plaintiff's state-law claims are not preempted — an assessment which was made purely for jurisdictional purposes — is not binding on the state court. See id. at 1172 & n. 1 (\"However, the preemption determination made for purposes of determining jurisdiction has no bearing on whether the defendant can actually establish a substantive preemption defense.”). . Several opinions have cited Rosciszewski but have declined to decide whether the Copyright Act completely preempts state-law claims since the claims at issue were not preempted by section 301. See, e.g., Lattie v. Murdach, 1997 WL 33803, at *6 (N.D.Cal.); Gateway 2000, Inc. v. Cyrix Corp., 942 F.Supp. 985, 995 (D.N.J.1996); Enhanced Computer Solutions, Inc. v. Rose, 927 F.Supp. 738, 739 n. 1 (S.D.N.Y.1996). . Section 102 provides: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102. Section 103 extends the subject matter in section 102 to compilations and derivative works but limits the scope of such protection where there is preexisting material within the compilation. See 17 U.S.C. § 103. . Section 106 establishes the exclusive rights vested in the owner of a copyrighted work, including the exclusive rights to reproduce the work, prepare derivative works, distribute copies of the work to the" }, { "docid": "14283217", "title": "", "text": "Hardware Show and Kidde’s alleged ongoing copyright violations with respect to Kidde’s commercially available packaging; (2) Kidde has admitted to copying XIT’s photograph and package prior to the 1999 Show without X-IT’s permission; and (3) Kidde’s commercially available packaging is a knock-off of X-IT’s packaging and therefore constitutes an ongoing infringement. The Court will address the issues raised by the parties cross-motions under Count I seriatim. 2. General Standards Copyright protection for original artwork is provided by 17 U.S.C § 102(a). That section states that: (а) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (б) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 17 U.S.C. § 102(a). Only the copyright owner, or the owner of exclusive rights under the copyright, at the time the alleged acts of infringement occur, has standing to bring an action for infringement of those rights. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir.1991). Moreover, the Copyright Act provides, in relevant part, that “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Therefore, in order to establish a claim of copyright infringement, a plaintiff must prove both (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original. See Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Alternatively, copyright protection is denied to so-called “functional” material on product labels or packaging. See Gray v." }, { "docid": "15442231", "title": "", "text": "rule for copyrighted sound recordings, eliminating the de minimis exception. We begin our analysis with the statutory text. Title 17 U.S.C. § Í02, titled “Subject matter of copyright: In general,” states, in relevant part: . (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (Emphasis added.) That provision' treats sound recordings identically to all other types of protected works; nothing in the text suggests differential treatment, for any purpose, of sound recordings compared to, say, literary works. Similarly, nothing in the neutrally worded statutory definition of “sound recordings” suggests that Congress intended to eliminate the de minimis exception. See id. § 101 (“ ‘Sound recordings’ are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.”). Title 17 U.S.C. § 106, titled “Exclusive rights in copyrighted works,” states: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorec-ords 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 literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;" } ]

[ { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" } ]

[ { "docid": "7876575", "title": "", "text": "was prevented from appealing his conviction by counsel’s failure to file a notice of appeal within the 10-day period. As here, petitioner brought a suit for post-conviction relief under 28 U.S.C. § 2255. He asked that his conviction be set aside and that he be resentenced so that he could appeal. The district court denied the § 2255 application because of petitioner’s failure to follow a Ninth Circuit rule that required applicants, such as petitioner, to show what errors they would raise on appeal and to demonstrate that denial of the appeal had caused prejudice to petitioner. The Supreme Court reversed. Id. at 329, 89 S.Ct. at 1716. The Court first noted, quoting Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962), that an appeal from a district court conviction is a matter of right. In language directly applicable to the instant case, the Court stated: Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings. Accordingly, we hold that the courts below erred in rejecting petitioner’s application for relief because of his failure to specify the points he would raise were his right to appeal reinstated. 395 U.S. at 330, 89 S.Ct. at 1717. The second case that bears directly on the issue before us is Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Penson involved an indigent defen dant whose appointed appellate counsel was allowed to withdraw on the basis of a conclusory statement that the case had. no merit and that he would not file a brief. Id. at 78, 109 S.Ct. at 348. The Ohio Court of Appeals noted that counsel’s certification that the appeal was meritless was “highly questionable.” Id. at 79, 109 S.Ct. at 349. It then examined the record without the assistance of any advocacy on behalf of defendant. The Ohio court found that there had been plain error in the jury" }, { "docid": "23486518", "title": "", "text": "756 (2000); Penson v. Ohio, 488 U.S. 75, 80-85, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438-39, 442-43, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). While dealing specifically with the standards and procedures by which a court may allow appointed counsel to withdraw from representation and then dispose of the remaining uncounseled appeal, this line of authority has broadly articulated the constitutional duties that an appellate court and counsel fulfill. This same authority necessarily reflects the corresponding constitutional guarantees the would-be appellant is denied when counsel forfeits an appeal. The point we emphasize here is that these lost guarantees cannot effectively be replaced by a collateral prejudice assessment of the sort conducted by the district court in this case. The basic principle underlying the cited cases is that, aside from when an appellant elects to proceed pro se, every direct criminal appeal must be briefed on the merits by counsel and decided accordingly by the court unless, after thorough review of all pertinent proceedings, the appeal is determined initially by counsel and then independently by the court to be wholly frivolous. See generally Smith, 528 U.S. at 279-80, 120 S.Ct. 746 (discussing and applying Court’s present understanding of its “chief cases in this area,” including Anders, Penson and McCoy ). As for the professional responsibilities of counsel, the appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal_Only after such an evaluation has led counsel to the conclusion that the appeal is “wholly frivolous” is counsel justified in making a motion to withdraw. This is the central teaching of Anders. McCoy, 486 U.S. at 438-39, 108 S.Ct. 1895 (footnote omitted); see Penson, 488 U.S. at 84-85, 109 S.Ct. 346 (noting appeals, like trials, “require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over”); see also Smith, 528 U.S. at 281, 120 S.Ct. 746 (noting importance of counsel’s brief in “ensuring] that a" }, { "docid": "1297098", "title": "", "text": "respondent or to piecemeal his litigation. The magistrate’s report also finds that Moss received ineffective assistance of appellate counsel in violation of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The report stated that Moss was denied his right as an indigent to “be furnished the trial record and be allowed time by the appellate court to raise any points that he chooses.” (citing Anders, 386 U.S. at 744, 87 S.Ct. at 1400). This finding was based on stipulations delivered at the evidentiary hearing that revealed that Moss had not been permitted to review his appeal records and that he did not receive the opportunity to file a pro se brief before his conviction was affirmed. The report also stated that, other than the Anders violation, “[a]ll of the asserted grounds for relief advanced to date by Moss in his various petitions are either utterly lacking in merit or are without any factual basis for raising.” Further, the magistrate found that the appointed counsel’s briefs “marginally” complied with the requirements of Anders. Additionally, but of significance, the magistrate noted that appellate counsel did not move to withdraw as attorney for Moss. The State argued that under Lockhart v. McCotter, 782 F.2d 1275 (5th Cir.1986), Moss’s petition should be denied because he did not show prejudice, i.e., but for counsel’s alleged errors there is a reasonable probability that the conviction would be reversed on appeal. The magistrate responded that the question of prejudice would effectively be presumed — that Moss need not show specific acts of unprofessional conduct to be entitled to relief on an Anders violation, even though no nonfrivolous issues had yet been raised. The magistrate also stated that Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which directed that a prejudice analysis is inapplicable in the case of an Anders violation, preempts application of Lockhart. III.Abuse of Writ The ruling that Moss has not abused the writ of habeas corpus will be reversed only for abuse of discretion. Shouest v. Whitley, 927 F.2d 205, 207 (5th Cir.1991). In" }, { "docid": "22768934", "title": "", "text": "and sentenced to life imprisonment. On appeal his appointed attorney filed a two page brief which simply urged: Defendant respectfully requests the court to review the record for errors patent on the face of the record. Louisiana Constitution of 1974, Article 1, Section 19; State v. Martin, 329 So.2d 688 (La.1976). In accord with such a review, the defendant asks the court to reverse his conviction and sentence. His conviction was affirmed, and his application for state habeas relief was denied. The Louisiana Supreme Court denied Lof-ton’s application for writ of mandamus. Having exhausted his state court remedies, Lofton filed a pro se petition for writ of habeas corpus in federal district court, alleging: (1) error in the trial court’s denial of his motion to suppress identification; (2) conviction obtained by use of evidence obtained pursuant to an unlawful arrest; (3) conviction obtained by violation of the privilege against self-incrimination; (4) conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure; (5) denial of effective assistance of counsel, which deprived petitioner of his right to appeal; and (6) that the trial court exceeded its jurisdiction. The district court did not conduct an evidentiary hearing and, basing its findings on the state court record, denied the petition. On appeal from the denial of his habeas petition, Lof-ton argues only that the , evidence of the photo array should have been excluded as the fruit of an illegal seizure, and also that he was denied effective assistance of counsel on appeal. II An accused is constitutionally entitled to effective assistance of counsel on direct appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Lofton contends that he was constructively denied assistance of counsel on appeal because his attorney filed a brief which did not assert any arguable error, and therefore prejudice should be presumed. The Supreme Court clarified the two types of claims involving the denial of effective assistance of appellate counsel in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 352-54, 102 L.Ed.2d 300 (1988). First, if there" }, { "docid": "14098567", "title": "", "text": "States v. Cordero, 18 F.3d 1248, 1253 (5th Cir.1994) (citation omitted). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether any nonfrivo-lous issue is presented for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the purpose of the Anders procedure is “to vindicate the constitutional right to appellate counsel”). The FPD failed to furnish this court with a rearraignment transcript, reflecting the colloquy between the court and the defendant when the defendant entered his guilty plea — nor did he order one. In his Anders brief, the FPD asserts that “Garcia has informed counsel that he does not seek to vacate his guilty plea but seeks to appeal his sentence.” Counsel has cited no authority that permits an attorney moving to withdraw to decline to undertake a “conscientious” examination of part of the record, based solely on his assertion that his client wishes to appeal only part of the judgment. This court has not directly addressed this issue in a published opinion. In United States v. Prado-Prado, 188 Fed.Appx. 329 (5th Cir.2006) (unpublished), the court was faced with a similar factual pattern. In that case, counsel filed an Anders brief but did not review the record relating to the guilty plea based on her assertion that Prado-Prado instructed her not to challenge the plea. In response to counsel’s Anders brief, Prado-Prado filed a motion to appoint substitute counsel. The response did not challenge counsel’s assertion that Prado-Prado did not wish to appeal his guilty plea. Instead, the defendant requested the appointment of substitute counsel to challenge sentencing issues. The court construed Prado-Prado’s response as confirmation that he did not desire to appeal his guilty plea. Therefore, the court concluded that counsel’s Anders brief was sufficient. The court then went on to address the sentencing issues raised in the case. Prado-Prado is persuasive authority, see 5th CiR. R. 47.5, for the proposition that it is consistent" }, { "docid": "23179325", "title": "", "text": "BENTON, Circuit Judge. Melody April McCully appeals her sentence following a plea of guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846. On initial briefing, McCully’s counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and challenged McCully’s sentence on various grounds. In supplemental briefs, both McCully and her counsel assert that the sentence violates the Sixth Amendment. Jurisdiction being proper under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms. While McCully’s case was pending on appeal, the Supreme Court held that the federal sentencing guidelines are unconstitutional and no longer mandatory. United States v. Booker, — U.S. -, -, -, 125 S.Ct. 738, 756-57, 769, 160 L.Ed.2d 621 (2005). Now, “district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing .... The courts of appeals review sentencing decisions for unreasonableness.” Booker, 125 S.Ct. at 767. After this court’s independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), McCully presents non-frivolous issues that her sentence 1) violates the Sixth Amendment, and 2) is unreasonable. McCully claims her sentence violates the Sixth Amendment because she did not admit to facts supporting the enhancements for obstruction of justice, possession of a dangerous weapon, and drug quantity. Because McCully neither objected to the enhancements on the basis of Apprendi, Blakely, or the Sixth Amendment, nor challenged the constitutionality of the guidelines before the district court, this court reviews for plain error. See United States v. Pirani, 406 F.3d 543, at 549-50, No. 03-2871 (8th Cir. April 29, 2005) (en banc), applying United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Booker requires: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a" }, { "docid": "11552387", "title": "", "text": "because a federally convicted defendant has the right to a direct appeal from his conviction, Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962), as well as the constitutional right to the effective assistance of counsel on that appeal, Evitts v. Lucey, 469 U.S. 387, 396-98, 105 S.Ct. 830, 836-37, 83 L.Ed.2d 821 (1985), rights which are denied if an appointed counsel fails without the defendant’s knowledge or consent to perfect the appeal. We do not see how the right to appeal and to effective assistance of counsel in connection therewith can be adequately vindicated if, as a condition to any relief, petitioner must first establish — without the assistance of any counsel — that he has a non-frivolous or arguably meritorious issue to present on appeal. Requiring an initial demonstration of merit from an unrepresented defendant as a condition to remedying the involuntary loss of appellate rights would deprive the defendant of one of the very benefits of appellate counsel — review by counsel for the purpose of identifying potential appellate issues. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400-01, 18 L.Ed.2d 493 (1967) (indigent’s right to counsel on appeal requires counsel wishing to withdraw on the ground the appeal has no merit to first act as an advocate for the indigent and file a brief “referring to anything in the record that might arguably support the appeal”). Absent appointment of counsel for petitioner, we do not think it permissible for either the district court or this court to determine that any appeal would be frivolous. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), is instructive. There, appointed appellate counsel, after representing that he had reviewed the record and found no error meriting reversal, was permitted to withdraw. He failed to file an Ander’s brief and hence did not provide any effective advocacy to defendant. No new attorney was appointed. The appellate court then, aided by briefs filed on behalf of co-defendants, reviewed the record itself and concluded that coun sel’s certification of" }, { "docid": "1297100", "title": "", "text": "this case, the district court appears to have done exactly as the November 1987 remand order directed: it made a determination as to whether Moss had abused the writ process by filing a second habeas corpus petition. Review of that issue is, however, unnecessary because of our determination on the merits of Moss’s petition. IV.Ineffective Assistance of Appellate Counsel A criminal defendant may not be denied representation on appeal based on appellate counsel’s bare assertion that an appeal has no merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Should appellate counsel move to withdraw from representation, he must file a brief advising the court of anything that might arguably support the appeal. Id. at 744, 87 S.Ct. at 1400. Likewise, before it considers the case on its merits without the assistance of counsel, the appeals court must first find that there are no nonfrivolous issues for appeal. Id. Additionally, Anders directs that “[a] copy of counsel’s brief should be furnished to the indigent, and time allowed him to raise any points that he chooses.” Id. Although it does not dispute that Moss was denied the opportunity to file a pro se brief on appeal, the State argues that Moss must show prejudice—i.e., a reasonable probability that his conviction would be reversed on appeal due to certain untoward professional deficiencies of his counsel—as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The magistrate dismissed the State’s argument in the light of Penson v. Ohio 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which held that the prejudice showing of Strickland was inappropriate where the appointed counsel is allowed to withdraw without meeting the Anders requirements. The Supreme Court in Penson reiterated the rule that “ ‘[a]ctual or constructive denial of counsel altogether is legally presumed to result in prejudice.’ ” Id. at 88, 109 S.Ct. at 354 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In Penson, appointed counsel prematurely withdrew, leaving the accused without counsel while the case was" }, { "docid": "14537602", "title": "", "text": "did, the government put pressure on Mason’s counsel to decide quickly whether his client might have any nonfriv-olous ground for appeal. Rule 27(a)(3)(A) allows only eight business days to respond to a motion, though the time can be extended by the court. Id. Eight days (ten, if the weekend is included) is a short time for a defendant’s lawyer to comply with the duty imposed by the Anders decision, which is not just to assert that there are no nonfrivolous grounds of appeal but to substantiate the assertion by discussing any ground of appeal conceivably supported by the record. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). The client, moreover, is entitled to respond to his counsel’s motion to withdraw, id.; 7th Cir. R. 51(b), since the normal sequel to the grant of the Anders motion is to affirm the judgment summarily. So by filing the motion to dismiss, the government effectively shortened by several months (barring such extensions of time as the court might grant) the time that counsel had in which to assess Mason’s case and file a brief that, if he believed Mason’s appeal waiver unarguably valid, would comply with Anders. Yet despite this handicap, counsel was able to prepare a response that is the full equivalent of an Anders brief. He states in the response that he has reviewed the entire record and given the case thorough consideration, and his statement is corroborated by the detailed discussion in the response of the facts of the case, of the language of the appeal waiver, and of the Rule 11 colloquy. The response discusses several potential challenges to the waiver but concludes that all would be frivolous. It would be the height of formalism to refuse to treat the response to the motion to dismiss as an Anders brief merely because it is not labeled a brief and was not filed when the opening brief in the appeal was due. United States v. Gomez-Perez, 215 F.3d 315, 320-21 (2d Cir.2000)" }, { "docid": "22881769", "title": "", "text": "POSNER, Circuit Judge. William Eskridge was convicted in 1992 of federal crimes and was sentenced to two consecutive prison terms to be followed by two concurrent 36-month terms of supervised release. He violated the terms of his supervised release in 2002, 2004, and 2005, and each time was sent back to prison. He appeals from the imposition in 2005 of a 22-month prison term on the basis of his latest violation. His lawyer moved to withdraw on the ground that there is no nonfrivolous ground for challenging the term. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We think there is a nonfrivolous ground, and in the usual case that would require us to deny the lawyer’s motion to withdraw and order counsel to brief the merits before we could decide the nonfriv olous issue, because to do otherwise would violate the appellant’s constitutional right to counsel. Smith v. Robbins, 528 U.S. 259, 277, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed,2d 300 (1988). But this presupposes that the ■ appellant has a constitutional right to counsel, and he may not in a case in which he is complaining not about an ordinary criminal judgment but about a revocation of supervised release and concomitant order returning him to prison. Anders was based not on the Sixth Amendment’s right to counsel, which does not extend to appellate proceedings, Martinez v. Court of Appeal, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), but on the idea, first announced in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), that the equal protection of the laws requires the government to provide the indigent with counsel in the initial appeal from a criminal conviction if the affluent are permitted to appeal with the assistance of counsel. In the situation, analogous to that presented in this case, of revoking probation, the Supreme Court has held that the defendant has a constitutional right to counsel only if the denial of counsel would" }, { "docid": "22677627", "title": "", "text": "of possessing, adjusted upward for obstruction of justice and downward for acceptance of responsibility and timely notification of intent to plead guilty. Even if Aguilar-Muniz had not waived appeal of his sentence, an appeal based on the Eighth Amendment would fail. Outside of the death penalty context, the Eighth Amendment is offended only by sentences that are “grossly disproportionate” to the crime. See Harmelin v. Michigan, 501 U.S. 957, 959, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); United States v. Bland, 961 F.2d 123, 129 (9th Cir.1992). Longer sentences based on similar drug violations have been held not to violate the Eighth Amendment. See United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir.1991) (holding that life sentence without parole for defendant convicted of possession with intent to distribute 151.9 grams of cocaine does not violate the Eighth Amendment). In addition to evaluating the issues raised in the Anders brief, we have independently examined the record for appealable errors. See Benson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Counsel did not address possible appellate issues arising from Aguilar-Muniz’s waiver of the right to a hearing on the government’s motion to withdraw the first plea agreement. After a plea agreement has been accepted and entered by the court, the court may not rescind the plea agreement on the government’s motion unless the defendant has breached the agreement. See United States v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir.1997); United States v. Partida-Parra, 859 F.2d 629, 634 (9th Cir.1988). The district court advised Aguilar-Muniz that he could oppose the government’s motion to withdraw the plea agreement, and if successful, enforce the original agreement under which Aguilar-Muniz would have received a ten-year sentence rather than a fourteen-year sentence. The defendant initially appeared not to understand the court’s explanation. The court called the problem to the attention of defense counsel, and after counsel conferred with the defendant, found that the waiver was knowing and voluntary. On de novo review, we find no error in the district court’s determination. We find that the Anders brief correctly characterizes the" }, { "docid": "13842422", "title": "", "text": "Ill.2d 384, 231 N.E.2d 390 (1967) (direct appeal, applying Anders); People v. Lee, 251 Ill.App.3d 63, 190 Ill.Dec. 418, 621 N.E.2d 287 (1993) (post-conviction appeal, applying Finley). That is precisely what the appellate court did in this case. Its affirmance was based on something less than full, adversarial briefing — really, no briefing at all — but its order leaves no doubt that, after a “careful[ ] review[ ][of] the record,” the court affirmed outright the dismissal of Wilkinson’s post-conviction petition. R. 11, Ex. F. at 2. This can only be understood as a merits-based decision with respect to each of the claims raised in the petition, including the ineffectiveness claim. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988) (once the appellate court decides that there is no non-frivolous issue for appeal, “the court [may] proceed to consider the appeal on the merits without the assistance of counsel”) (emphasis ours). It may have been possible, as the State suggests it was, for Wilkinson on his own initiative to have argued the merits of his ineffectiveness claim either by filing a memorandum in opposition to the public defender’s motion to withdraw (and citing his ineffectiveness claim as one that merited appellate review in the normal course) or by filing a merits brief of his own; but we do not think that Wilkinson can be faulted for failing to take either of these steps. Wilkinson was not apprised (either by his attorney or by the appellate court) that he had a right to respond to the motion, let alone an obligation to do so if he wished to preserve his claims for further review. Cf. Lee, 190 Ill.Dec. 418, 621 N.E.2d at 288 (post-conviction appeal) (“Counsel requested that this court grant petitioner a reasonable opportunity to show cause why the appeal should not be dismissed or the judgment affirmed for lack of merit and why the office of the State Appellate Defender should not be allowed to withdraw as counsel on appeal. The clerk of this court advised petitioner that he had 30 days" }, { "docid": "23465262", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. Kathy-Ann Tannis (Tannis) appeals a judgment of conviction and sentence the United States District Court for the District of New Jersey imposed on her after she pled guilty to a charge of possessing approximately 374 grams of a mixture containing cocaine base, with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). Tannis was sentenced pursuant to the Sentencing Reform Act. The applicable guideline prescribed a sentencing range of 121 to 151 months. The district court permitted a downward departure to the statutory minimum and imposed a sentence of 120 months followed by a five-year term of supervised release. Her motion for an extension of time to file a notice of appeal was allowed by the district court. Appellant’s Appendix (App.) at 2a. We have appellate jurisdiction over her appeal under 28 U.S.C.A. § 1291 (West Supp.1991). The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). Tannis’s counsel filed a brief pursuant to the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis’s appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process. After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date. In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found" }, { "docid": "12066385", "title": "", "text": "ground. The collateral review a federal court engages in, when reviewing the petitioner’s claim of ineffective assistance of appellate counsel, raises an issue of whether a petitioner must show “prejudice” to obtain a Writ of Habeas Corpus. See Penson v. Ohio, — U.S. -, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (prejudice is presumed); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (prejudice needed). The majority and I agree that the Supreme Court has created two categories concerning ineffective assistance of appellate counsel. Penson v. Ohio represents the first category. A Penson petitioner can obtain habeas relief without a showing of prejudice because “the '[ajctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.’ ” Penson, 109 S.Ct. at 354 (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2067). In Penson, the indigent petitioner was found guilty of several serious crimes. New counsel was appointed to represent him on appeal. The new counsel filed a timely notice of appeal. The attorney then filed with the state appellate court a document captioned “Certification of Meritless Appeal and Motion” in which the attorney certified to the court that he had carefully reviewed the record; that he found no errors requiring reversal, modification and/or vacation of the defendant’s convictions or sentence; and that he would not file a meritless appeal in the matter. In the same document, the attorney also made a motion to withdraw as counsel for the defendant. Penson, 109 S.Ct. at 348-49. The Ohio Court of Appeals permitted the attorney to withdraw and granted the defendant leave to file a pro se brief if he wished. The state court also stated that it would “independently review the record thoroughly to determine whether any error exist[ed] requiring reversal or modification of the sentence....” Thus the attorney “was permitted to withdraw before the court reviewed the record on nothing more than ‘a conclusory statement by the appointed attorney on appeal that the case ha[d] no merit and that he w[ould] file no brief.’ ” Id. at 349. The Supreme" }, { "docid": "22540517", "title": "", "text": "amendment right by allowing it to be used ‘to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ ” McQueen, 755 F.2d at 1178 (quoting Bowman v. United States, 409 F.2d 225, 226 (5th Cir.1969)). Once an Anders brief has been filed, the appellate court will conduct the familiar inquiry as to whether there are no nonfrivolous issues for appeal. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). The court will consider the arguments made by appointed counsel in the Anders brief along with any issues raised by the defendant. Anders, 386 U.S. at 744, 87 S.Ct. 1396. We have done so and determine that in this ease there are no nonfrivolous issues for appeal. We are now faced with the second inquiry, whether Wagner should nonetheless be allowed to proceed pro se on appeal. We conclude that he should not. Had Wagner asserted his right to represent himself prior to the filing of the Anders brief, he would have been allowed to file his own brief on appeal. See 28 U.S.C. § 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993). Because he waited until after the Anders brief was filed to inform the court that he wished to proceed pro se, Wagner’s request is too late. For the foregoing reasons, Wagner and his counsel’s motion to withdraw is GRANTED. Wagner’s request that the Anders brief be stricken is DENIED. Wagner’s motion to proceed pro se on appeal is DENIED. As there are no meritorious issues for appeal, the appeal is DISMISSED. MOTIONS TO WITHDRAW GRANTED. MOTION TO PROCEED PRO SE DENIED. APPEAL DISMISSED." }, { "docid": "13842421", "title": "", "text": "“brief’ that the case presented no constitutional issue worthy of appellate review. Nominally, all that the defender’s office asked for was to be released from its obligation to represent Wilkinson; it did not request the court to dismiss the appeal or to affirm the circuit court’s judgment. But of course, any motion to withdraw pursuant to Finley or Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), necessarily implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous. In deciding whether to allow the withdrawal, the court must, therefore, examine the substance of the case to determine whether there are any issues of arguable merit. Once the court has satisfied itself that there are no such issues, the court may not only release the appellant’s counsel, but proceed to dismiss the appeal or to affirm the judgment. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. The apparent practice in Illinois is to affirm the judgment. See, e.g., People v. Jones, 38 Ill.2d 384, 231 N.E.2d 390 (1967) (direct appeal, applying Anders); People v. Lee, 251 Ill.App.3d 63, 190 Ill.Dec. 418, 621 N.E.2d 287 (1993) (post-conviction appeal, applying Finley). That is precisely what the appellate court did in this case. Its affirmance was based on something less than full, adversarial briefing — really, no briefing at all — but its order leaves no doubt that, after a “careful[ ] review[ ][of] the record,” the court affirmed outright the dismissal of Wilkinson’s post-conviction petition. R. 11, Ex. F. at 2. This can only be understood as a merits-based decision with respect to each of the claims raised in the petition, including the ineffectiveness claim. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988) (once the appellate court decides that there is no non-frivolous issue for appeal, “the court [may] proceed to consider the appeal on the merits without the assistance of counsel”) (emphasis ours). It may have been possible, as the State suggests it was, for Wilkinson on his own initiative" }, { "docid": "14098566", "title": "", "text": "wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir.1994) (citation omitted). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether any nonfrivo-lous issue is presented for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the purpose of the Anders procedure is “to vindicate the constitutional right to appellate counsel”). The FPD failed to furnish this court with a rearraignment transcript, reflecting the colloquy between the court and the defendant when the defendant entered his guilty plea — nor did he order one. In his Anders brief, the FPD asserts that “Garcia has informed counsel that he does not seek to vacate his guilty plea but seeks to appeal his sentence.” Counsel has cited no authority that permits an attorney moving to withdraw to decline to undertake a “conscientious” examination of part of the record, based solely on his assertion that" }, { "docid": "14537601", "title": "", "text": "States v. Keresztury, 293 F.3d 750, 759-60 (5th Cir.2002). Ordinarily the government urges waiver of appeal after the defendant has filed either a merits brief or an Anders brief. But in this case the government decided not to wait for the opening brief to be filed (which is when an Anders brief would be due), instead moving to dismiss the appeal only a month after it was docketed and three months before Mason’s opening brief was due. The government cannot be faulted for proceeding thus. It has a right to file a motion to dismiss an appeal before briefing is completed, or for that matter begun. Rule 27 of the Federal Rules of Appellate Procedure, which governs motions in appeal proceedings, does not specify when a motion to dismiss can be filed; and appellees are urged to move to dismiss frivolous appeals before briefing, in order to save the parties’ money and the court’s time. Brooks v. Allison Division of General Motors Corp., 874 F.2d 489 (7th Cir.1989) (chambers opinion). However, by moving as it did, the government put pressure on Mason’s counsel to decide quickly whether his client might have any nonfriv-olous ground for appeal. Rule 27(a)(3)(A) allows only eight business days to respond to a motion, though the time can be extended by the court. Id. Eight days (ten, if the weekend is included) is a short time for a defendant’s lawyer to comply with the duty imposed by the Anders decision, which is not just to assert that there are no nonfrivolous grounds of appeal but to substantiate the assertion by discussing any ground of appeal conceivably supported by the record. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). The client, moreover, is entitled to respond to his counsel’s motion to withdraw, id.; 7th Cir. R. 51(b), since the normal sequel to the grant of the Anders motion is to affirm the judgment summarily. So by filing the motion to dismiss, the government effectively shortened by several months (barring" }, { "docid": "1297101", "title": "", "text": "any points that he chooses.” Id. Although it does not dispute that Moss was denied the opportunity to file a pro se brief on appeal, the State argues that Moss must show prejudice—i.e., a reasonable probability that his conviction would be reversed on appeal due to certain untoward professional deficiencies of his counsel—as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The magistrate dismissed the State’s argument in the light of Penson v. Ohio 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which held that the prejudice showing of Strickland was inappropriate where the appointed counsel is allowed to withdraw without meeting the Anders requirements. The Supreme Court in Penson reiterated the rule that “ ‘[a]ctual or constructive denial of counsel altogether is legally presumed to result in prejudice.’ ” Id. at 88, 109 S.Ct. at 354 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In Penson, appointed counsel prematurely withdrew, leaving the accused without counsel while the case was under appellate review. Discussing the minimum briefing requirements set forth in Anders, the Court stated that only after the appellate counsel has filed the Anders brief and “the appellate court finds no nonfrivolous issue for appeal, may the court proceed to consider the appeal on the merits without the assistance of counsel.” Id. at 80, 109 S.Ct. at 350. Our task here, therefore, is simply to determine whether actual or constructive denial of appellate counsel has occurred. Specifically, we must inquire whether Moss has been denied counsel by the lack of opportunity to review the record and file a pro se brief on appeal. Conversely, if Moss has not been denied counsel, Strickland requires that he show a reasonable probability that his conviction would be reversed on appeal but for certain lapses by his lawyer. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068; see also Ricalday v. Procunier, 736 F.2d 203, 205-06 (5th Cir.1984); Hamilton v. McCotter, 772 F.2d 171, 182 (5th Cir.1985). Both the deficiency and prejudice aspects of the ineffectiveness inquiry present" }, { "docid": "11444853", "title": "", "text": "HANSEN, Circuit Judge. Mustafa Abdullah appeals the district court’s denial of his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On appeal, Abdullah argues his guilty plea was involuntary and unintelligent. We conclude, however, that Abdullah has not shown any ground entitling him to relief, and we therefore affirm the district court’s judgment. I. Background Abdullah was arrested on July 17, 1989, during the execution of a search warrant at a Kansas City, Missouri, apartment. During the course of the search, authorities found 745 grams of cocaine powder and a loaded .44 caliber revolver. The weapon was found in a bedroom under a bed sheet. Abdullah, along with four other defendants, was charged by a federal grand jury in an eighteen-count indictment. He initially pleaded not guilty to the charges against him, but in September 1989, pleaded guilty to one count of conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 846 & 841(a)(1) and to one count of using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The government agreed in return to dismiss the remaining six drug charges against him. Prior to his sentencing hearing, Abdullah sought through a pro se letter to withdraw his guilty plea. The district court rejected his request and sentenced him under the Sentencing Guidelines to 365 months imprisonment on the conspiracy charge and a consecutive 60 months on the firearm charge. Abdullah appealed his sentence, arguing, among other things, that he received confusing and incorrect explanations of the firearm charge from the judge, prosecutor, and his own counsel. This court affirmed the sentence on October 16, 1991. See United States v. Abdullah, 947 F.2d 306 (8th Cir.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1969, 118 L.Ed.2d 569 (1992). Abdullah filed a pro se § 2255 motion with the district court in May 1993, challenging his sentence primarily on ineffective assistance of counsel grounds. As relevant to this appeal, he argued his guilty plea was unknowing and involuntary because his counsel provided inaccurate" } ]

[ { "docid": "10567334", "title": "", "text": "contributions were made to CMF, CMF would in turn award “scholarships” for donors’ children at the schools they attended. The government argued this tax evasion scheme, which occurred during the same time Jewell engaged in the Evans tax evasion scheme, was admissible as evidence of Jewell’s criminal intent to evade taxes. Other acts evidence is admissible under Rule 404(b) if it is 1) relevant to a material issue raised at trial, 2) similar in kind and close in time to the crime charged, 3) supported by sufficient evidence to support a jury finding the defendant committed the other act, and 4) its probative value is not substantially outweighed by its prejudicial value. United States v. Johnson, 439 F.3d 884, 887 (8th Cir.2006). The CMF evidence was relevant to Jewell’s intent to engage in a tax evasion scheme, was arguably similar to the Evans tax evasion scheme, and occurred during the same time. Finally, there was sufficient evidence to show Jewell engaged in this separate tax scheme, and the district court was within its discretion to determine the probative value of the evidence was not outweighed by its prejudicial effect under Rule 403. We therefore find no abuse of discretion in the district court’s decision to admit evidence of the CMF tax evasion scheme. Relatedly, Jewell contends the district court’s admission of the CMF evidence required the district court to grant his motion to sever the trial of the mail fraud conspiracy count from the trial of the tax evasion count, because the CMF evidence was only relevant to the tax evasion count. Jewell argues the CMF evidence improperly spilled over to the jury’s consideration of the mail fraud conspiracy. A district court’s denial of a severance motion will be reversed only if the denial resulted in severe or compelling prejudice. United States v. Boyd, 180 F.3d 967, 981 (8th Cir.1999). Jewell cannot show he was prejudiced by any alleged spillover, because the jury acquitted him of the mail fraud conspiracy count. We therefore find no reversible error arising from the district court’s denial of Jewell’s motion to sever. F Jewell" } ]

[ { "docid": "23431497", "title": "", "text": "the crime; rather, he contends the evidence of his prior conviction was unduly prejudicial. We disagree. The district court is granted broad discretion in the admission of evidence under Federal Rule of Evidence 404(b). United States v. Voegtlin, 437 F.3d 741, 745 (8th Cir.), cert. denied, — U.S.-, 127 S.Ct. 368, - L.Ed.2d — (2006). We will reverse only if the evidence has no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts. Id. Evidence of prior criminal acts is not admissible to prove the defendant acted in conformity with the prior act, but it may be admissible for other purposes such as proving a defendant’s knowledge or intent. See Fed.R.Evid. 404(b). Evidence of prior criminal acts is admissible if the evidence is: “ ‘ 1) relevant to a material issue; 2) similar in kind and close in time to the crime charged; 3) proven by a preponderance of the evidence; and 4) if the potential prejudice does not substantially outweigh its probative value.’ ” Voegtlin, 437 F.3d at 745 (quoting United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005)). Evidence of Spears’s prior drug conviction was relevant to show Spears’s knowledge and intent, which were essential elements of the instant offense. Admissibility also is supported because Spears’s 2000 conviction for manufacture and delivery of cocaine was similar in kind and close in time to the instant offense. To guard against potential prejudice, the district court gave a limiting instruction to the jury that the evidence of Spears’s prior conviction should be considered only on the issues of knowledge and intent. Accordingly, evidence of Spears’s prior drug crime was highly probative as to Spears’s knowledge and intent to commit the instant drug offense and outweighed any potential undue prejudice. C. Unreasonable Sentence The final issue before us is the government’s cross-appeal challenging the district court’s categorical rejection of the Guidelines’ 100:1 powder cocaine to crack cocaine quantity ratio and grant of a downward variance using a 20:1 quantity ratio. We review for abuse of discretion the reasonableness of a district court’s" }, { "docid": "14353626", "title": "", "text": "court to deny the admission of relevant evidence when the probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. Federal Rule of Evidence 404(b) allows “admission of evidence of other crimes, wrongs, or acts to show proof of motive, intent, or preparation if, among other reasons, the evidence is of bad acts similar and not overly remote in time to the crime committed.” United States v. Coleman, 284 F.3d 892, 894 (8th Cir.2002) (citation and internal quotation marks omitted). “Other crimes evidence is admissible if it is: (1) relevant to a material issue; (2) of crimes similar in kind and reasonably close in time to the crime charged; (3) sufficient to support a jury finding that the defendant committed the other crimes; and (4) more probative than prejudicial.” Mejia-Uribe, 75 F.3d at 397-98 (citation and internal quotation marks omitted). “Under this test, admissibility of other crimes evidence depends on the nature and purpose of the evidence.” Id. at 398 (citation omitted). In United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981), we allowed the admission of a thirteen-year-old conviction because of its factual similarity to the crime charged. “[T]here is no absolute rule regarding the number of years that can separate offenses.” Id. We apply a “reasonableness standard and examine the facts and circumstances of each case.” Id. (citations omitted). Evidence of prior bad acts “is admissible to show a defendant’s predisposition once the defendant has asserted the entrapment defense.” Crump, 934 F.2d at 954 (citations omitted). The government used the prior convictions to prove predisposition in response to Abumayyaleh’s assertion of entrapment as a defense and the prior convictions were sufficiently similar factually to the case at bar. In the 1993 conviction, Abumayyaleh received a stolen firearm. In the 1995 conviction, Abumayyaleh possessed a firearm as a felon and removed the identification numbers. The district court did not abuse its discretion in admitting the prior convictions because of their high probative value and the necessity to prove predisposition. E. Sentencing Finally, Abumayyaleh requests remand of this case due to errors in the calculation of" }, { "docid": "9363768", "title": "", "text": "'on the second floor of the building and Green, while being taken into custody, insisted that he could not be arrested because he had not taken possession of the box. Green first argues that the District Court erred in allowing the introduction into evidence of a police officer’s testimony regarding Green’s 1993 arrest for possessing and selling cocaine base. The District Court admitted this testimony under Federal Rule of Evidence 404(b), which allows for the admission of “other crimes” evidence only for limited purposes, such as showing motive, intent, opportunity, or knowledge. Fed. R.Evid. 404(b). This evidence is admissible if (1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value. See United States v. Anderson, 879 F.2d 369, 378 (8th Cir.1989), cert. denied, 493 U.S. 982, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). Prior bad acts evidence may be admitted “to prove any relevant issue other than the character of the defendant or his propensity toward criminal activity.” United States v. McDaniel, 773 F.2d 242, 247 (8th Cir.1985). The district court has broad discretion in determining whether to admit evidence of other crimes, and this Court will overturn its decision only if it can be shown that the ‘“evidence clearly had no bearing upon any issues involved.’ ” United States v. Turner, 104 F.3d 217, 222 (8th Cir.1997) (quoting United States v. Baker, 82 F.3d 273, 276 (8th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 538, 136 L.Ed.2d 423 (1996)). Green argues that his 1993 arrest for distribution of cocaine base is not close enough in time or similar enough in kind to be admitted as other crimes evidence under Rule 404(b). This Court applies a standard of reasonableness, as opposed to a standard comprising an absolute number of years, in determining whether a prior offense occurred within a relevant time frame for purposes of Rule 404(b). See United States v. Burk, 912 F.2d 225, 228" }, { "docid": "20033413", "title": "", "text": "district court did not plainly err in admitting the recordings into evidence. III. Trogdon also claims that the district court erred in admitting his 1996 conviction for conspiracy to distribute 1000 kilograms or more of marijuana under Rule 404(b). The government sought to introduce the conviction as evidence of Trogdon’s knowledge or intent, and the court allowed it. We review the district court’s decision to admit Trogdon’s prior conviction for abuse of discretion. See United States v. Gaddy, 532 F.3d 783, 789 (8th Cir.2008). Rule 404(b) prohibits the admission of a defendant’s prior bad acts for use as character or propensity evidence, but permits admission of such evidence for other purposes, such as proving intent or knowledge. To be admissible under this rule, the prior conviction “must be (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Williams, 534 F.3d 980, 984 (8th Cir.2008) (internal quotation omitted). Rule 404(b) is a rule of inclusion, and we “will reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003) (internal quotation omitted). We conclude that the district court did not abuse its discretion in admitting Trogdon’s prior conviction. The conviction was relevant to material issues, namely, Trogdon’s intent and knowledge. Trogdon argues that the conviction was not relevant, because he challenged only the quantity of marijuana involved in the conspiracy and did not pursue a general denial defense that placed knowledge and intent at issue. We disagree. Even if Trogdon had gone so far as to stipulate to the requisite knowledge and intent, the Supreme Court’s decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), “eliminates the possibility that a defendant can escape the introduction of past crimes under Rule 404(b) by stipulating to the element of the crime at issue.”" }, { "docid": "7461392", "title": "", "text": "The robbery forced the cab to be shut down during the time when lucrative trips to the airport were likely to occur. The jury returned a verdict finding Williams guilty of interfering with commerce by violence. Because Williams had five prior convictions for robbing cab driv ers, he was sentenced to life in prison under 18 U.S.C. § 3559(c). II. Discussion A. 404(b) Evidence Williams first argues that the district court erred in admitting evidence of his prior criminal acts. Federal Rule of Evidence 404(b) provides that evidence of a defendant’s prior crimes is not admissible to prove character. However, evidence of prior crimes may be introduced for other limited purposes. This court has set a four-part test for determining the admissibility of Rule 404(b) evidence. The evidence must be 1) relevant to a material issue; 2) similar in kind and not overly remote in time to the charged crime; 3) supported by sufficient evidence; and 4) such that its potential prejudice does not substantially outweigh its probative value. United States v. Hardy, 224 F.3d 752, 757 (8th Cir.2000). A district court’s ruling on 404(b) will be reversed “only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Howard, 235 F.3d 366, 372 (8th Cir.2000) (quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.1998)). The district court did not abuse its discretion in admitting evidence of the pri- or cab robberies that Williams committed in Southeast Cedar Rapids. The evidence was used to prove identity, intent, and method of operating, not to show evidence of Williams’s bad character. The government successfully demonstrated that his prior crimes were similar in kind and not overly remote in time to the charged crime: he robbed cab drivers with the aid of a knife six times in twenty years, sixteen of which were spent in custody. These convictions were well supported by evidence, and any potential prejudice created by the evidence did not substantially outweigh its probative value. We affirm the district court’s admission of" }, { "docid": "7842244", "title": "", "text": "excluded evidence of his four felony drug convictions: possession of marijuana in 1990, solicitation to possess meth in 1991, possession of marijuana in 1998, and possession with intent to distribute meth in 2005. This court reviews “a district court’s decision to admit evidence under Federal Rule of Evidence 404(b) for abuse of discretion and reverse[s] only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Henderson, 613 F.3d 1177, 1182 (8th Cir.2010) (alteration in original), quoting United States v. Thomas, 593 F.3d 752, 757 (8th Cir.2010). District courts may admit 404(b) evidence of a prior conviction in order to prove intent or knowledge. Id., citing United States v. Trogdon, 575 F.3d 762, 766 (8th Cir.2009). The prior conviction must be “(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Williams, 534 F.3d 980, 984 (8th Cir.2008). Aldridge believes that his 1990, 1991, and 1998 convictions were irrelevant and too remote. “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ...” Fed.R.Evid. 404(b). Because Aldridge made a general denial of the offense, evidence of his prior drug-related convictions is relevant to his intent and knowledge. See Trogdon, 575 F.3d at 766; United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003). The amount and type of drug in the prior convictions does not have to mirror the charges. See United States v. Logan, 121 F.3d 1172, 1178 (8th Cir.1997). It is not decisive that Aldridge’s previous convictions were for smaller amounts or for marijuana instead of meth. Id. Here, the crimes were relevant and supported by significant evidence. The remaining issue is whether the 1990," }, { "docid": "11585428", "title": "", "text": "added two levels for his supervisory role in the offense pursuant to section 3Bl.l(c) of the United States Sentencing Guidelines. II. A Rule JM(b) Evidence Edwards contends that the district court committed reversible error by admitting evidence seized by police during the May 17, 1994 search of his residence. Under Rule 404(b), evidence of prior bad acts may be admitted to demonstrate motive, opportunity, intent, preparation, common plan, knowledge, identity, or absence of mistake or accident. To be admissible, evidence must also meet the following conditions: It must be sufficient to support a jury finding that the defendant committed the prior act; the probative value of the evidence must outweigh its prejudicial effect; and the bad act must be reasonably similar in kind and close in time to the crime charged. United States v. Jones, 990 F.2d 1047, 1050 (8th Cir.), cert. denied, 510 U.S. 1048, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994). We review the district court’s decision to admit rule 404(b) evidence for an abuse of discretion. United States v. Huff, 959 F.2d 731, 736 (8th Cir.), cert. denied, 506 U.S. 855, 113 S.Ct. 162, 121 L.Ed.2d 110 (1992). The district court did not abuse its discretion in admitting the evidence from the prior search. The evidence was relevant to the material issue of Edwards’ knowledge and intent. Edwards’ defense — that he was merely present and had no knowledge that a crime was being committed — made Edwards’ intent and knowledge material issues at trial. See United States v. Thomas, 58 F.3d 1318, 1322 (8th Cir.1995) (holding any defense that challenges the mental element of the government’s case makes the defendant’s intent a material issue). The evidence seized at Edwards’ apartment was also similar in kind and close in time to the crime charged. During the search, police seized a pager and drug-related notes similar to those Edwards possessed at the time of his arrest. The loaded firearm and the large quantity of cash found during the search provided further evidence of similar drug-trafficking activity. Moreover, the execution of the warrant was reasonably close in time to" }, { "docid": "21806257", "title": "", "text": "the rifle in the present case ‘more probable ... than it would be without the evidence.’ ” Id. (quoting Fed. R. Evid. 401 (2007)). While we acknowledged that the use of prior firearm possession to prove knowledge “involves a kind of propensity inference (i.e., because he knowingly possessed a firearm in the past, he knowingly possessed the firearm in the present ease),” we still approved its admission “as long as it tends to prove something other than criminal propensity.” Id. at 1145. Finally, in considering the admissibility of the evidence under Rule 403, we concluded that Moran’s earlier firearm possession “was sufficiently similar to have probative value in proving knowledge” and that the district court did not abuse its discretion in determining that the evidence’s potential for unfair prejudice did not substantially outweigh its probative value. Id. at 1145-46. As in Moran, the government offered the text messages and Ms. Dibier’s testimony for the proper purpose of proving knowledge: that Benford knew the Lorcin pistol was inside the bedroom. And, like Moran, the evidence was relevant for that proper purpose. Benford indicated in his text messages that he had guns to trade for a motor, and Ms. Dibler testified that Benford actually held a firearm during an altercation. In the same way that Moran’s prior firearm possession supported the inference that he had the same knowledge in the context of the charged offense,\" so too does Benford’s past firearm possession suggest he knowingly possessed the Lorein pistol. See Moran, 503 F.3d at 1144; United States v. McGlothin, 705 F.3d 1254, 1263 (10th Cir. 2013) (“[D]efendant’s prior acts of weapon possession are relevant for the proper purpose of demonstrating the charged act of firearm possession was knowingly undertaken.”). We also reject' Benford’s argument that the\" danger of unfair prejudice substantially outweighed the evidence’s probative value. The evidence admitted here is more probative of Benford’s- knowledge of the Lorein pistol than was the Rule 404(b) evidence admitted in Moran’s case to show his knowledge\" of the riñe found on the back car seat. Approximately three months before Benford’s arrest, Benford strongly implied" }, { "docid": "12035980", "title": "", "text": "show that he. is generally a violent person. Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on'a'particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). But evidence may be admitted for another purpose, such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). We review for an abuse of discretion the district court’s admission of evidence under Rule 404(b), “and we will not reverse unless the evidence clearly had no bearing on the case , and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Williams, 796 F.3d 951, 958 (8th Cir.2015) (quotation and citation omitted). “Rule 404(b) is one of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” Id. (quotation and citations omitted). In determining whether a district court abused its discretion, we apply a four-part test. Id. .Under that test, a district court properly admits evidence “under Rule 404(b) if (1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is .supported by sufficient evidence; and .(4) its potential prejudice does not substantially outweigh its probative value.” Id. at 959 (quotation and citations omitted). The fourth requirement derives from Federal Rule of Evidence 403, “which provides .in relevant part that ‘[t]he court may exclude relevant evidence if its probative value is substantially outweighed by [the) danger of ... unfair prejudice.’ ” Id. (alterations in. original) (quoting Fed.R.Evid. 403). . We conclude that the four-part test is satisfied. First, the August- 2011 spanking incident was relevant to a material issue. Specifically, the government introduced the evidence to prove absence of mistake and lack of accident in light of Contreras’s statement-to the FBI that the child had fallen from, a chair. Evidence that Contreras had struck, the same victim hard enough to offer an apology to her mother just four months prior" }, { "docid": "10308565", "title": "", "text": "the crime or conduct must be “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence; and (4) its probative value ... [must] not [be] outweighed by any prejudicial impact.” United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir. 2002). Steele concedes that there was sufficient evidence for the jury to find that he had committed the other acts, but asserts that the evidence of his prior conviction and resisting arrest were not relevant under any of the purposes listed in Rule 404(b), and that the district court failed to balance the probative value and risk of prejudice before admitting the evidence of the prior conviction. Both the prior conviction for assault with a dangerous weapon and the prior conduct of resisting arrest are similar in kind to the charges on which Steele was being tried. The prior conviction was in 2000, and he resisted arrest in 2001. Both acts thus occurred within six years of Steele’s instant offenses and were not too remote in time to be relevant for Rule 404(b) purposes. See United States v. Roberson, 439 F.3d 934, 941 (8th Cir.2006) (finding prior offenses within eight years of the charged offense admissible under Rule 404(b)). Rule 404(a) bars the admission of evidence of other acts by a defendant “only if it is relevant solely on the question of a defendant’s ‘character or ... propensity to commit the crime charged.’ ” United States v. Logan, 121 F.3d 1172, 1178 (8th Cir.1997) (quoting United States v. Jones, 990 F.2d 1047, 1050 (8th Cir.1993)) (emphasis added) (omission in original). Here, the district court found that the evidence was relevant not to Steele’s character, but to Officer Wilkinson’s knowledge at the time that he “was approaching [Steele] and going into the residence.” Steele attacks this reasoning because the government did not ask Wilkinson whether he knew about the prior incidents and how that knowledge influenced his behavior. Wilkinson had testified, however, that he knew Steele had recently been incarcerated and that this affected his choice of the" }, { "docid": "19656418", "title": "", "text": "preparation, plan, knowledge, identity, or absence of mistake or accident!.] We review for an abuse of discretion a district court’s decision to admit evidence of other crimes, wrongs, or acts under Fed.R.Evid. 404(b), “reversing] only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005) (citations and internal quotation marks omitted). Evidence of other crimes, wrongs, or acts “is admissible if it is (1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value.” Id. (citations omitted). We conclude the district court did not abuse its discretion in admitting the contested evidence to show Lucas’s knowledge and intent. First, Lucas’s knowledge and intent were relevant to material issues in the case because the government was required to prove Lucas voluntarily and intentionally attempted to manufacture methamphetamine and knowingly possessed a firearm on December 2, 2003. “Evidence of similar drug activity is admissible in a drug prosecution case because a defendant’s complicity in other similar transactions serves to establish intent or motive to commit the crime charged.” United States v. Johnson, 934 F.2d 936, 940 (8th Cir.1991) (citation and internal quotation marks omitted). Evidence that Lucas possessed a firearm on a previous occasion is also relevant to show knowledge and intent. See United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (citation omitted). The evidence of Lucas’s other criminal conduct was similar in kind and sufficiently close in time to the crimes charged. “When admitted to show intent, the prior acts need not be duplicates, but must be ' sufficiently similar to support an inference of criminal intent.” Id. at 1275 (citation and internal quotation marks omitted). “To determine if a crime is too remote in time to be admissible under Rule 404(b), we apply a reasonableness standard, evaluating the facts and circumstances of éach case.” Id. (citation" }, { "docid": "16325077", "title": "", "text": "be overruled,” and referred to an anticipated limiting instruction with regard to the evidence that would be admitted. At this point, the court’s ruling on the admissibility of the evidence was clear, and counsel would no longer have had any reason to doubt whether that ruling was definitive. See id.; Fed. R. Evid. 103(b) & advisory committee’s note to 2000 amendment. We therefore conclude that Cotton properly preserved this claim of error, and accordingly review the district court’s decision to admit the evidence of Cotton’s pri- or convictions for abuse of discretion. Young, 753 F.3d at 767. Evidence of a defendant’s prior convictions is categorically inadmissible to prove the defendant’s criminal propensity. Fed. R. Evid. 404(b)(1). Evidence of prior convictions may, however, be admissible to prove a specific element or aspect of the charged offense, such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Where there is a proper purpose for evidence of a prior conviction, the conviction may be admitted if it is “(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Trogdon, 575 F.3d 762, 766 (8th Cir.2009) (quoting United States v. Williams, 534 F.3d 980, 984 (8th Cir.2008)). This is considered a rule of inclusion, meaning that if these elements of admissibility are satisfied, the evidence will be excluded only when it is offered solely to prove criminal propensity. United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003). Federal Rule of .Evidence 404(b)(2) identifies the purposes for which evidence of prior convictions may be admitted, but merely reciting those permissible purposes without more is not sufficient to render evidence of a prior conviction admissible in any particular case. Rather, when the defendant raises a timely objection to admission of the evidence, Rule 404(b) requires a careful inquiry and analysis of the purpose for which the evidence is offered. The government — as proponent of the evidence —" }, { "docid": "14277203", "title": "", "text": "that the district court erred in allowing the testimony of Beverly Gillam and Pamela Trotter under Federal Rule of Evidence 404(b). “[W]e review the district court’s Rule 404(b) ruling for an abuse of discretion.” United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002). This court characterizes Rule 404(b) as “a rule of inclusion rather than exclusion,” and we will reverse a district court’s admission of prior act evidence “only when such evidence clearly ha[s] no bearing on the issues in the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Benitez, 531 F.3d 711, 716 (8th Cir.2008). Here, we find that the district court did not abuse its discretion by admitting the prior bad act evidence. Rule 404(b) specifically states that “[e]videnee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). Prior bad act evidence is admissible, however, when introduced for any other purpose, including to show knowledge or intent. Id. Even if introduced for a purpose other than character, not all prior bad act evidence is admissible, as it is still subject to an additional four-factor admissibility test. The evidence must: (1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and (4) not have a prejudicial value that substantially outweighs its probative value. United States v. Kern, 12 F.3d 122, 124-25 (8th Cir.1993). We find that the prior bad act testimony of Trotter and Gillam meets all four factors. First, the prior bad act evidence was relevant to the material issues of whether Turner had knowledge of methamphetamine manufacture and the items involved therein, and whether Turner had the intent to contribute to the methamphetamine manufacture that occurred at 3850 Fountain City Road. Evidence of pri- or drug dealings is “relevant to the material issue [of] whether [Turner] had" }, { "docid": "15027068", "title": "", "text": "erred by permitting the government to introduce subsequent propensity evidence under Federal Rule of Evidence 404(b). McGilberry objected to the trial court’s admission of evidence that McGilberry, when arrested, possessed three ounces of marijuana in a lunch box along with $776. First, McGilberry contends that, contrary to the district court’s implication, neither knowledge nor mistake was at issue in this case. Thus, McGilberry submits that this admitted evidence tended only to show his propensity to deal in narcotics. Second, he argues that subsequent possession of marijuana and cash a year and a half after the alleged conspiracy ended is simply not probative of his earlier knowledge or lack of mistake. “We review admission of [404(b) ] evidence for abuse of discretion and will reverse only when the evidence clearly had no bearing on the case and was introduced solely to show defendant’s propensity to engage in criminal misconduct.” United States v. Walker, 428 F.3d 1165, 1169 (8th Cir.2005). “Admissibility of 404(b) evidence is governed by four factors: the evidence must be 1) relevant to a material issue; 2) proven by a preponderance of the evidence; 3) of greater probative value than prejudicial effect; and 4) similar in kind and close in time to a charged offense.” Id. “There is no absolute rule for the number of years that can separate evidence of offenses admitted under Rule 404(b). Instead we examine the facts and circumstances of each case and apply a reasonableness standard.” United States v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005). McGilberry’s arguments are again unpersuasive. Rule 404(b) provides: “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for purposes, such as proof of ... knowledge ... or absence of mistake or accident....” The district court stated that the marijuana and cash found on McGilberry’s person at the time of his arrest could be admitted to show “an absence of mistake or accident that the defendant had knowledge.” The court further stated that it found the marijuana" }, { "docid": "15401701", "title": "", "text": "teller terminal. Rose-na Poston admitted making the deposit but alleged that she did so with the permission of her supervisor. Her supervisor denied giving such permission. The standard of review on questions relating to the admissibility of evidence is whether the trial court abused its discretion. The admissibility of this evidence is governed by Rules 403 and 404(b) of the Federal Rules of Evidence, which state: Rule 403. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 404(b). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of other acts must meet four requirements in order to be admissible under 404(b): 1. The evidence must be admissible upon a material issue raised; 2. The evidence must be similar in kind and reasonably close in time to the charge on trial; 3. Evidence of the other crimes or bad acts must be clear and convincing; and, 4. Prejudice to the defendant must be outweighed by the probative value of the evidence. United States v. Frederickson, 601 F.2d 1358, 1365 (8th Cir.), cert. denied, 444 U.S. 934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979). We hold that the District Court did not abuse its discretion by admitting this evidence. In applying the four part test, supra, to the instant case, we find that the “check kite” is admissible against Bernard Poston on the material issue of motive to commit the charged offense, since the misapplication of funds would have been sufficient to cover the “kited” check. The “check kite” is similar in kind to the aiding and abetting of a misapplication of funds, since both involve knowledge of bank and check processing procedures. The" }, { "docid": "10308564", "title": "", "text": "resisting arrest. The government later asked FBI Agent Theodore Miller, who had investigated the December 28, 2006 assault on Ivory, whether he had examined Steele’s criminal record. Just before evidence came in about Steele’s prior conviction, the district court admonished the jury that the evidence could not be used to determine that Steele had a bad character, but only for limited purposes and listed the Rule 404(b) exceptions. The government also asked Agent Miller whether Steele’s supervised release had ever been revoked and whether it was because he had resisted an arrest. Steele’s counsel objected to the latter question, arguing that the evidence was unfairly prejudicial and therefore inadmissible under Rule 403. The district court overruled the objection and admonished the jury to consider the past incident of resisting arrest only for the limited purposes of “motive, intent, something of that nature.” Evidence of other crimes or acts is admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). To be admissible under Rule 404(b), the crime or conduct must be “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence; and (4) its probative value ... [must] not [be] outweighed by any prejudicial impact.” United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir. 2002). Steele concedes that there was sufficient evidence for the jury to find that he had committed the other acts, but asserts that the evidence of his prior conviction and resisting arrest were not relevant under any of the purposes listed in Rule 404(b), and that the district court failed to balance the probative value and risk of prejudice before admitting the evidence of the prior conviction. Both the prior conviction for assault with a dangerous weapon and the prior conduct of resisting arrest are similar in kind to the charges on which Steele was being tried. The prior conviction was in 2000, and he resisted arrest in 2001. Both acts thus occurred within six years of Steele’s instant offenses and were" }, { "docid": "19897091", "title": "", "text": "them.” A jury convicted Harris of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession with the intent to distribute a mixture containing cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He received a sentence of 120 months’ imprisonment. II. ANALYSIS A. Earlier Drug Sales Admissible Harris first contests the admission of Andrews’s testimony that he had sold drugs on at least five occasions before his arrest in this case. He maintains that this testimony suggested only that he had a propensity to sell drugs and that Federal Rule of Evidence 404(b) therefore precluded its admission. We review the admission of this evidence for an abuse of discretion. See United States v. Price, 516 F.3d 597, 603 (7th Cir.2008). Rule 404(b) provides that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” Harris points to our case law stating that evidence may be admitted over a Rule 404(b) objection only when four conditions are met: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Moore, 531 F.3d 496, 499 (7th Cir.2008) (quoting United States v. Ross, 510 F.3d 702, 713 (7th Cir.2007)). He contends those requirements have not been met here. We turn first to the important question of whether evidence of Harris’s prior drug sales tended to establish a matter other than a propensity to deal drugs. The government" }, { "docid": "20391718", "title": "", "text": "Thomas. Thomas moved for a judgment of acquittal at the close of the Government’s case and also at the close of all evidence. The district court denied both motions and submitted the two count indictment to the jury. The jury returned a verdict of guilty on both counts. Thomas appeals, arguing (1) evidence of the 2008 investigation and arrest was introduced in violation of Federal Rule of Evidence 404(b); and (2) there was insufficient evidence to support the jury’s verdict. II. The district court enjoys broad discretion to admit evidence of other crimes. United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005). We review a district court’s decision to admit evidence under Federal Rule of Evidence 404(b) for abuse of discretion and “ ‘reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.’ ” Id. (quoting United States v. Howard, 235 F.3d 366, 372 (8th Cir.2000)). While outlawing admission of evidence of other crimes that is proffered “to prove the character of a person in order to show action in conformity therewith,” Federal Rule of Evidence 404(b) allows such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” It is well-settled in this circuit that the rule is one of inclusion, “such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” United States v. Johnson, 439 F.3d 947, 952 (8th Cir.2006). Evidence of other crimes is admissible under Rule 404(b) if it is “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value.” Thomas, 398 F.3d at 1062. Thomas argues that the evidence of the 2008 crack cocaine trafficking fails three of the four requirements. He argues that the evidence is not relevant to a material issue raised at trial, is not similar in kind and close in time" }, { "docid": "17690005", "title": "", "text": "725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Rule 404(b) “excludes evidence of specific bad acts used to circumstantially prove a person has a propensity to commit acts of that sort.” United States v. Johnson, 439 F.3d 884, 887 (8th Cir.2006). Evidence of prior bad acts is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). Rule 404(b) evidence is admissible if it is (1) relevant to a material issue, (2) close in time and similar in kind to the crime charged, (3) sufficient to support a jury finding that the defendant committed the other act, and (4) its probative value is not substantially outweighed by its prejudice. See United States v. Kern, 12 F.3d 122, 124-25 (8th Cir.1993). The district court admitted evidence of a 2002 Illinois conviction for distribution of cocaine. It found that the conviction was (1) relevant to motive, knowledge, and intent to commit the crime, (2) close in time (about two years apart) and similar to the charged crime (both involving distribution of drugs), (3) supported by evidence sufficient for a jury finding that Roundtree committed the crime, and (4) more probative than prejudicial. Roundtree asserts that his 2002 conviction was for simple possession, not distribution, of cocaine, and therefore, could not meet the requirements for admission under Rule 404(b). The only evidence supporting his assertion is paragraph 35 of the PSR, stating he had a 2002 conviction for possession of a controlled substance. However, according to that same paragraph: The Complaint reflects that the defendant was placed under arrest after he delivered A grams of cocaine to an undercover police officer. The defendant was also charged with Distributing a Controlled Substance (Count 2); however, this charge was dismissed. (emphasis added). Paragraph 2 of the PSR characterizes the 2002 conviction as “delivery of a controlled substance.” (emphasis added). The certified statement of conviction shows that Roundtree was charged with two identical counts; violating 720 Ill. Comp. Stat. 570/401(d), OTHER AMT NARCOTIC SCHED I & II. This Illinois statute makes it unlawful to “manufacture or deliver," }, { "docid": "17685895", "title": "", "text": "issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” United States v. Walker, 470 F.3d 1271, 1274 (8th Cir.2006) (internal quotation omitted). We will reverse the district court’s determination that a prior conviction is admissible “only when the evidence clearly has no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” Id. (internal quotation omitted). We have upheld the district court’s admission of evidence of a defendant’s prior drug convictions to prove knowledge and intent in the face of the defendant’s denial of the offense. See, e.g., United States v. Hessman, 493 F.3d 977, 983 (8th Cir.2007) (evidence of prior drug convictions admitted to show knowledge and intent of conspiracy to distribute drugs); United States v. Cook, 454 F.3d 938, 941 (8th Cir.2006) (citing United States v. Love, 419 F.3d 825, 828 (8th Cir.2005)). The government was required to prove that Williams knowingly possessed the drugs and that he intended to distribute them. The district court admitted Williams’s prior conviction for drug distribution as proof of that knowledge and intent, but did not admit Williams’s prior conviction for drug possession. We conclude that the district court did not abuse its discretion in determining that the evidence was not admitted to show propensity and that its probative value was not substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 403. Furthermore, the risk of unfair prejudice to Williams was minimized by the district court’s instruction that the jury use the evidence of the prior conviction to show only knowledge and intent and not propensity. See id. Williams’s next argument is that the district court abused its discretion by not excluding from all future proceedings the evidence of his drug dealing relationship with the informant. Williams frames this issue in terms of the district court’s refusal to sanction the government for failing to disclose the testimony prior to trial pursuant to Rule 404(b). We review the district court’s decision to exclude evidence as" } ]

[ { "docid": "23194159", "title": "", "text": "summary judgment order was the final order with respect to these issues, and the Notice of Appeal was therefore untimely and we lack jurisdiction. Furthermore, these questions (except possibly Theodore’s claim that his interest was improperly valued) are moot. Once foreclosed property is sold to a bona fide third-party purchaser, a court generally lacks the power to craft an adequate remedy for the debtor. Roller v. Worthen Nat’l Bank (In re Roller), 999 F.2d 346, 347 (8th Cir. 1993); Van Iperen v. Prod. Credit Ass’n, 819 F.2d 189, 191 (8th Cir.1987) (per curiam). Therefore, a debtor who fails to obtain a stay of the sale has no remedy on appeal and the appeal is moot. Van Iperen, 819 F.2d at 191. The Appellants in this case not only failed to obtain a stay following summary judgment, but indeed waited until after two decrees of sale, the notice of sale, the actual sale, and the order confirming sale before they even moved for a stay. Theodore also appeals from the district court’s denial of his motion to set aside the sale and from the court’s Rule 70 order divesting him of title. The district court entered these orders, respectively, on February 13 and February 14, 1996. Theodore’s appeal from these orders is timely, but without merit. The first of these issues is moot. Theodore argues that the Notice of Sale was defective in that it failed to clearly indicate that the property would be sold subject to his senior interest. As in the proceedings below, Theodore asks us on appeal to set aside the foreclosure sale. However, the property is now in the hands of good faith purchasers who relied upon the sale, and we cannot undo that purchase. Van Iperen, 819 F.2d at 191. After the foreclosure sale, Theodore refused to deliver the deed after he was tendered payment under terms of the contract for deed. The district court entered an order pursuant to Rule 70 divesting Theodore of title and vesting title in the United States marshal. On direction of the court, the marshal then conveyed a deed to" } ]

[ { "docid": "17606946", "title": "", "text": "entered an order to show cause why the appeals from the order to pay funds and conversion order should not be dismissed for lack of jurisdiction. On May 11, 2011, the district court dismissed these appeals for lack of jurisdiction because. (1) Sears Cattle did not object to the motion to pay funds; (2) if Sears Cattle had objected to the motion to pay funds, Sears Cattle did not appeal the order to pay funds; and (3) Robert and Korley did not have standing to pursue either appeal. The Sears and Sears Cattle appeal the district court’s dismissal of both appeals to this court. II. DISCUSSION We review the bankruptcy court’s findings of fact for clear error and its legal conclusions de novo. Wetzel v. Regions Bank, 649 F.3d 831, 834 (8th Cir.2011). “We review a dismissal for mootness de novo.” Midwest Farmworker Emp. & Training, Inc. v. U.S. Dep’t of Labor, 200 F.3d 1198, 1201 (8th Cir.2000); accord In re Strong, 138 Fed.Appx. 870 (8th Cir.2005) (unpublished per curiam) (citing Midwest Farmworker with approval in a bankruptcy case). A. Tract 1 Appeal The district court dismissed the Tract 1 appeal as moot under § 363(m), which provides: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. “Section 363(m) moots any challenge to an order approving the sale of assets to a good faith purchaser where (1) no party obtained a stay of the sale pending appeal, and (2) reversing or modifying the authorization to sell would affect the validity of the sale or lease.” In re Polaroid Corp., 611 F.3d 438, 440-41 (8th Cir.2010) (footnote omitted). Appellants admit that, if § 363(m) applies, their Tract 1 appeal must fail. However, they contend (1) “[t]he district" }, { "docid": "21026162", "title": "", "text": "not be assigned under applicable law, it may not be assumed or assigned by the trustee. 3 Collier on Bankruptcy ¶ 365.06[1]. But if the other party consents — in this case, the physicians — the trustee may assume and assign the contract. 11 U.S.C. § 365(c)(1)(B). B. 11 U.S.C. § 363 For sales in bankruptcy, § 363 authorizes the trustee to use, sell, or lease property of the estate outside the ordinary course of business after providing notice and hearing. 11 U.S.C. § 363(b)(1). The Bankruptcy Code broadly defines the property of the bankruptcy estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Executory contracts and leases also fall under this definition. Rickel, 209 F.3d at 303; Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 498 (3d Cir.1998). To promote certainty and finality in bankruptcy sales, § 363(m) prohibits the reversal of a sale to a good faith purchaser of bankruptcy estate property if a party failed to obtain a stay of the sale. The statute provides: The reversal or modification on appeal of an authorization ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m). The provision’s blunt finality is harsh but its certainty attracts investors and helps effectuate debtor rehabilitation. See 3 Collier on Bankruptcy ¶ 363.11. Nevertheless, we have rejected a per se rule “mooting appeals absent a stay of the sale ... at issue.” Krebs, 141 F.3d at 498 (holding failure to obtain stay of order approving sale of executory contracts by debtor rendered appeal moot because any remedy would affect sale). Instead, we require the satisfaction of two conditions before an appeal becomes moot under § 363(m): “(1) the underlying sale or lease must not have" }, { "docid": "16625747", "title": "", "text": "Debtor neglected to obtain a stay pending appeal. The Debtor responds to the Trustee’s Motion to Dismiss asserting that Heartland is not a party in interest who should have been allowed to bid at the sale, and that the sale to Heartland is against public policy. Debtor believes the sale to Heartland is against public policy because, through the purchase, Heartland was able to eliminate exposure to the Debtor’s employment claim. Additionally, the Debtor asserts that as a pro-se appellant, she was unaware that a stay pending appeal was necessary, and she requests that the court now grant her that stay. DISCUSSION Whether an appellant’s failure to obtain a stay of a sale under section 363 renders the appeal moot is a question of law that we review de novo. In re CGI Indus., Inc., 27 F.3d 296, 298 (7th Cir.1994). The Bankruptcy Code is explicit in pronouncing the need for a stay pending appeal when the sale of estate property is challenged. Section 363(m) states: (m) The reversal or modification on appeal of an authorization under subsection (b) or (c) of this, section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m) (1994). Additionally, Bankruptcy Rule 8005 emphasizes the importance of obtaining a stay pending appeal as quickly as possible. That Rule states in part: “A motion for a stay of the judgment, order or decree of a bankruptcy court, for approval of a supersedeas bond, or for other relief pending appeal must ordinarily be made in the first instance in bankruptcy court....” The rule that an appeal from an order approving the sale of an estate asset becomes moot if one fails to seek a stay pending appeal is known as the “finality rule.” See Forbes v. Forbes (In re Forbes), 215 B.R. 183, 192-193 (8th Cir." }, { "docid": "9477309", "title": "", "text": "a good faith purchaser entitled to the protections of 11 U.S.C. § 363(m). The Sale Order was not final for seven days, but COP did not file a motion to stay the order. On August 25, the sale closed as approved by the Sale Order. The trustee subsequently filed a motion to dismiss this appeal as moot. II. MOTION TO DISMISS FOR MOOTNESS We first address the trustee’s motion to dismiss this appeal as moot based on 11 U.S.C. § 363(m) or under the equitable mootness doctrine. Although COP’s appeal comes perilously close to the edge of the mootness cliff, we do not think it should fall off. The trustee reasons that this appeal is moot in light of § 363(m) because the Agreement was sold to a good faith purchaser, COP did not seek a stay of the Sale Order, and a ruling for COP in this appeal that the Agreement was not property of the estate would affect the validity of the sale of the Agreement to Rhino. Subsection 363(m) provides: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. We have previously explained the purpose behind § 363(m): In order to protect the public’s interest in finalizing bankruptcy sales to encourage buyers to purchase the debtor’s property, to prevent injury to creditors, and to insure that adequate sources of financing remain available, § 363(m) of the Bankruptcy Code protects the validity of certain sales by the trustee from the potential consequences of an appeal, if the order authorizing the sale is not stayed. Osborn v. Durant Bank & Trust Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir.1994) abrogated in part on other grounds by Eastman v. Union Pacific R.R. Co., 493" }, { "docid": "16625748", "title": "", "text": "authorization under subsection (b) or (c) of this, section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m) (1994). Additionally, Bankruptcy Rule 8005 emphasizes the importance of obtaining a stay pending appeal as quickly as possible. That Rule states in part: “A motion for a stay of the judgment, order or decree of a bankruptcy court, for approval of a supersedeas bond, or for other relief pending appeal must ordinarily be made in the first instance in bankruptcy court....” The rule that an appeal from an order approving the sale of an estate asset becomes moot if one fails to seek a stay pending appeal is known as the “finality rule.” See Forbes v. Forbes (In re Forbes), 215 B.R. 183, 192-193 (8th Cir. BAP 1997). The rationale for the rule is two-fold. First, it reflects the judicial doctrine which states that an appeal may be rendered moot when the occurrence of certain events prevents an appellate court from granting effective relief. Second, with respect to sales of estate property, the rule reflects the importance of encouraging finality in bankruptcy sales by protecting good-faith purchasers. Veltman v. Whetzal, 93 F.3d 517, 521 n. 4 (8th Cir.1996); In re CGI Indus., Inc., 27 F.3d at 299. The Eighth Circuit and other circuits have consistently adhered to the finality rule and held that failure to obtain a stay pending appeal of an order permitting sale of estate assets renders the appeal moot. Forbes, 215 B.R. at 192-193; Van Iperen v. Production Credit Ass’n (In re Van Iperen), 819 F.2d 189, 190 (8th Cir.1987) (holding that “[o]nce collateral is taken and converted into cash, no court is able to formulate adequate relief to the debtor.”); In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir.1994) (once a sale has gone forward," }, { "docid": "6612291", "title": "", "text": "properly decided not to reach the merits of the Trustees' appeal. We are in just as good a position to make this determination as was the district court, which sat as an appellate court in this case. In addition, the majority acknowledges that the doctrine it adopts must be “limited in scope and cautiously applied,” see Maj. Op. at 559, and I think that plenary review would better serve these ends. . The current rule governing stays pending appeal, Bankruptcy Rule 8005, does not contain similar language, but analogous requirements now appear in 11 U.S.C. §§ 363(m) and 364(e). See footnote 4, infra. . 11 U.S.C. § 363(m) states: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 364(e) states: The reversal or modification on appeal of an authorization under this section to obtain credit or incur debt, or of a grant under this section of a priority or a lien, does not affect the validity of any debt so incurred, or any priority or hen so granted, to an entity that extended such credit in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and the incurring of such debt, or the granting of such priority or lien, were stayed pending appeal. . In In re Joshua Slocum, Ltd. 922 F.2d 1081, 1085 (3d Cir.1990) (footnote omitted), we noted that \"only two provisions of the Bankruptcy Code, 11 U.S.C. §§ 363(m) and 364(e), specifically require that a party seek a stay pending appeal,” and we \"decline[d] to interpret the mootness principles in such a way that would, in effect, create a third situation where parties are required to seek a stay.”" }, { "docid": "9477310", "title": "", "text": "or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. We have previously explained the purpose behind § 363(m): In order to protect the public’s interest in finalizing bankruptcy sales to encourage buyers to purchase the debtor’s property, to prevent injury to creditors, and to insure that adequate sources of financing remain available, § 363(m) of the Bankruptcy Code protects the validity of certain sales by the trustee from the potential consequences of an appeal, if the order authorizing the sale is not stayed. Osborn v. Durant Bank & Trust Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir.1994) abrogated in part on other grounds by Eastman v. Union Pacific R.R. Co., 493 F.3d 1151, 1156 (10th Cir.2007). No one disputes that the Agreement was sold from the debtor’s estate to a good faith purchaser and that COP did not seek to stay the sale. The mootness question turns on what relief is available to COP if it were to prevail in this appeal. See, e.g., Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (noting that appeal should be dismissed as moot if it is “impossible for the court to grant any effectual relief whatever” (quotation omitted)); Osborn, 24 F.3d at 1203 (holding “that because it is not impossible for the court to grant some measure of effective relief, the Osborns’ appeal is not moot”). Under our decisions and the facts of this case, § 363(m) forecloses any remedy to COP that would affect the validity of the trustee’s sale. But it does not preclude a remedy that would not affect the validity of the sale. In Osborn, we explained that, “[b]y removing those remedies that would affect the" }, { "docid": "7490540", "title": "", "text": "the bankruptcy court has been completed, thus rendering this appeal moot. The Bankruptcy Code provides that “[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). The Code further provides: The reversal or modification on appeal of an authorization under subsection (b) ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m) (emphasis added). Accordingly, when a bankruptcy court authorizes a sale of assets pursuant to § 363(b)(1), it is required to make a finding with respect to the “good faith of the purchaser.” See In re Abbotts Dairies of Pa., Inc., 788 F.2d 143, 150 (3d Cir.1986). The Court of Appeals for the Third Circuit implemented this requirement, based upon the terms of the statute, in order to place prospective appellants on notice of the need to obtain a stay pending appeal, or face dismissal for mootness pursuant to § 363(m), should the district court affirm the bankruptcy court’s finding of good faith. Id. In the instant case, the appellant failed to obtain a stay of the Order of the bankruptcy court dated June 15, 1995. The bankruptcy court, however, did not make a finding that the sale of accounts receivable and WIP was made in good faith. In the absence of a finding of good faith by the bankruptcy court, I cannot conclude that the failure of the appellant to obtain a stay renders this appeal moot pursuant to § 363(m). Accordingly, I will remand this matter to the bankruptcy court for a finding as to the good faith of the purchasers, as that term has been defined and analyzed in this Circuit. See id. at 149 (stating that district court should have remanded the issue of good faith" }, { "docid": "17606947", "title": "", "text": "in a bankruptcy case). A. Tract 1 Appeal The district court dismissed the Tract 1 appeal as moot under § 363(m), which provides: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. “Section 363(m) moots any challenge to an order approving the sale of assets to a good faith purchaser where (1) no party obtained a stay of the sale pending appeal, and (2) reversing or modifying the authorization to sell would affect the validity of the sale or lease.” In re Polaroid Corp., 611 F.3d 438, 440-41 (8th Cir.2010) (footnote omitted). Appellants admit that, if § 363(m) applies, their Tract 1 appeal must fail. However, they contend (1) “[t]he district court had no jurisdiction to hold that the Tract 1 appeal was moot” because the bankruptcy court lacked subject matter jurisdiction to enter the sale order in the first place; and (2) § 363(m) does not apply to the sale of Tract 1. 1. Jurisdiction to Determine Mootness Appellants assert the district court lacked subject matter jurisdiction to find the Tract 1 appeal moot because the bankruptcy court did not have subject matter jurisdiction to enter the sale and enforcement orders. When a lower federal court lacks jurisdiction, the appellate court has “ ‘jurisdiction on appeal, not on the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263 (1936)). A court faced with more than one jurisdictional issue may decide these jurisdictional questions in any order. See id. at 100 n. 3," }, { "docid": "13912727", "title": "", "text": "property in a bankruptcy proceeding. Even if we assume that Rule 62(a) applied to the sale at issue, the Debtor’s appeals nevertheless are rendered moot by her failure to obtain a stay pending appeal pursuant to Bankruptcy Rule 8005. The Debtor also contends that her appeals are not moot because the Buyer was not a good faith purchaser. Again we disagree. The bankruptcy court found there was no evidence that the Trustee colluded with the buyer and further found that the sale was fair and reasonable and in the best interests of creditors. These findings were not clearly erroneous. III. DISCUSSION A. Standard of Review We review the district court’s decision de novo. In re Arizona Appetite’s Stores, Inc., 893 F.2d 216, 218 (9th Cir. 1990). The factual findings of the bankruptcy court are reviewed for clear error, and its conclusions of law are reviewed de novo. Id. B. The Section 363(m) Mootness Rule The Trustee moved for authorization to sell the properties pursuant to 11 U.S.C. § 363(b)(1), which provides that “the Trustee, after notice and hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” The property rights of good faith purchasers participating in such sales are protected by section 363(m), which provides that the reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m). The Debtor could have made a timely motion for a stay pending appeal. Bankruptcy Rule 8005 provides that “[a] motion for a stay of the judgment, order or decree of a bankruptcy judge ... pending appeal must ordinarily be presented to the bankruptcy judge in the first instance.” Rule 8005 also authorizes the bankruptcy judge to issue stays sua" }, { "docid": "7490539", "title": "", "text": "the bankruptcy court in opposition to the amended motion, thereby preserving his right to raise the issues on appeal. See Frank v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir.1990). Therefore, I find that the appellant has not waived his right to appeal the Order of the bankruptcy court granting the amended motion. According to Grossman, the appellant is not sincerely concerned about whether the transaction is in the best interests of the debtor but has filed this appeal in an effort to obtain the free releases as proposed in the original offer. Grossman has failed to cite any cases supporting the proposition that self-interest, rather than mere altruistic concern for the best interests of the debtor, constitutes bad faith. I find that the appellant has not acted in bad faith by exercising his right to file an appeal. C. Sale of Assets According to Grossman, the appellant has failed to obtain a stay of the sale of the accounts receivable and WIP pending this appeal, and at this time the sale approved by the bankruptcy court has been completed, thus rendering this appeal moot. The Bankruptcy Code provides that “[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). The Code further provides: The reversal or modification on appeal of an authorization under subsection (b) ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m) (emphasis added). Accordingly, when a bankruptcy court authorizes a sale of assets pursuant to § 363(b)(1), it is required to make a finding with respect to the “good faith of the purchaser.” See In re Abbotts Dairies of Pa., Inc., 788 F.2d 143, 150 (3d Cir.1986). The Court of Appeals for the Third Circuit" }, { "docid": "5166375", "title": "", "text": "an order approving a sale of property or issuance of a certificate of indebtedness is stayed pending appeal, the sale to a good faith purchaser or the issuance of a certificate to a good faith holder shall not be affected by the reversal or modification of such order on appeal, whether or not the purchaser or holder knows of the pendency of the appeal. 11 U.S.C. Bankruptcy Rule 805 (superceded 1983). In addition to the stay requirement, former Rule 805 also provided the authority for obtaining a stay. The authority for the stay is now found in Rule 8005. The amendment of former Rule 805 produced a series of case law dismissing appeals as moot. See, e.g., In re Bleaufontaine, 634 F.2d 1383, 1389-90 (5th Cir.1981); Greylock Glen Corp. v. Community Savings Bank, 656 F.2d 1, 4-5 (1st Cir.1981); In re Shaw, 16 B.R. 875 (9th Cir. BAP 1982). . Section 363(m) states: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and, such sale or lease were stayed pending appeal. 11 U.S.C.A. § 363 (West 1984). Subsections (b) and (c) grant the trustee powers of sale in certain circumstances. For cases applying § 363(m), see In re The Charter Co., 829 F.2d 1054 (11th Cir.1987); In re Abbotts Dairies of Pennsylvania, Inc., 788 F.2d 143 (3rd Cir.1986). .Actually, the sale at issue in In re Onouli-Kona Land Co. was ordered by the bankruptcy court. The debtor in that case argued unsuccessfully that § 363(m) limits the mootness rule to appeals from sales by bankruptcy trustees. . Lee-Vac contended that Rule 805 applied only to sales, not leases. The Fifth Circuit rejected this \"strict reading” of the Rule based on the Rule’s \"relationship to the general rule of appellate procedure ... and ... important policy" }, { "docid": "2094119", "title": "", "text": "in 1978 U.S.C.C.A.N. 5963, 6323; S.Rep. No. 95-989, at 82 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5868. Whether the debtor has an interest in property under section 541 is determined according to state law. See Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 497 (3d Cir.1998). Significantly, section 363(m) also provides that: [t]he reversal or modification on appeal of an authorization under subsection (b) ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m). We have referred to section 363(m) as a “statutory mootness” provision. See Krebs, 141 F.3d at 497. In construing section 363(m), we have rejected a per se rule “mooting appeals absent a stay of the sale or lease at issue,” id. at 498, and instead require that two conditions be met before an appeal becomes moot under section 363(m): (1). the underlying sale or lease must not have been stayed pending appeal, and (2) reversing or modifying the authorization to sell or lease would affect the validity of the sale or lease, see id at 499; see also In re Lloyd, 37 F.3d 271, 273 (7th Cir.1994) (although § 363(m) prevented court from annulling sale of land, appeal not moot where trustee had not disbursed sale proceeds and debtor asserted right to recover from proceeds). B. 11 U.S.C. § 365 Section 365 enables the trustee to maximize the value of the debtor’s estate by assuming executory contracts and unexpired leases that benefit the estate and rejecting those that do not. 11 U.S.C. § 365(a); 'see also Stewart Title Guar. Co. v. Old Republic Nat’l Title Ins. Co., 83 F.3d 735, 741 (5th Cir.1996) (section 365 “allows a trustee to relieve the bankruptcy estate of burdensome agreements which have not been completely performed”); see generally 2 Norton Bankruptcy Law & Practice 2d § 39:1" }, { "docid": "11647924", "title": "", "text": "Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101 (3d Cir.1981). We have jurisdiction on appeal pursuant to 28 U.S.C. § 1291. II. The Gajkowski creditors contend that the bankruptcy court was obligated, under both 28 U.S.C. § 1738 (1982) and the Pennsylvania rules of res judicata, to give pre-clusive effect to the first judgment of the Pennsylvania Supreme Court which imposed liability on Debtor 107 for the personal injuries they sustained as a result of the strike incident. Debtor 107 counters with the position that it was necessary for the Gajkowski creditors to have secured a stay of the bankruptcy order in order to preserve their position on appeal. We need not consider the propriety of the bankrupt cy court’s order lifting the automatic stay because we find that the subsequent decision of the Pennsylvania Supreme Court reversing its first judgment mooted the Gajkowski creditors’ cross-appeal. A. The Bankruptcy Code does not specifically require a party aggrieved by an order granting relief from an automatic stay to seek a stay pending appeal. Indeed, there are only two statutory provisions in the Bankruptcy Code where a stay is specifically required to preserve a position pending appeal: (1) 11 U.S.C. § 363(m) provides that the validity of a sale or lease of property of the estate to a good faith purchaser or lessor will not be affected by a reversal or modification on appeal of a bankruptcy court’s authorization of such sale or lease, unless such sale or lease were stayed pending appeal; and (2) 11 U.S.C. § 364(e) provides that the validity of any debt or lien granted to a good faith creditor will not be affected by the reversal or modification on appeal of the bankruptcy court’s authorizing the trustee to obtain such credit, incur such debt, or grant such priority or lien, unless a stay was obtained pending appeal. When pressed with Debt- or 107’s contention that the Gajkowski creditors’ cross-appeal had become moot, the district court reasoned that because the instant circumstances did not fall into either of the above categories an additional requirement" }, { "docid": "21026163", "title": "", "text": "to obtain a stay of the sale. The statute provides: The reversal or modification on appeal of an authorization ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m). The provision’s blunt finality is harsh but its certainty attracts investors and helps effectuate debtor rehabilitation. See 3 Collier on Bankruptcy ¶ 363.11. Nevertheless, we have rejected a per se rule “mooting appeals absent a stay of the sale ... at issue.” Krebs, 141 F.3d at 498 (holding failure to obtain stay of order approving sale of executory contracts by debtor rendered appeal moot because any remedy would affect sale). Instead, we require the satisfaction of two conditions before an appeal becomes moot under § 363(m): “(1) the underlying sale or lease must not have been stayed pending appeal, and (2) reversing or modifying the authorization to sell would affect the validity of the sale or lease.” Rickel, 209 F.3d at 298 (holding failure to obtain stay order approving sale of leases by debtor rendered appeal moot); cf. Pittsburgh Food & Beverage, 112 F.3d at 649 (holding appeal of bankruptcy sale moot because court could not grant effective relief). IV. Statutory Mootness The trustee and the Western Pennsylvania Healthcare Alliance contend the physicians’ appeal is statutorily moot because the assignment of the physicians’ contracts triggered the protection of § 363(m). In support, appellees rely on our recent decisions in In re Rickel Home Centers, Inc., 209 F.3d 291 (3d Cir.2000), and Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490 (3d Cir.1998), which, they argue, require procuring a stay pending appeal to avoid mootness when an assignment and sale are authorized under §§ 363 and 365. First we must examine whether § 363(m) applies to the assignment of the physician contracts to Allegheny General Hospital and the Western Pennsylvania" }, { "docid": "16625749", "title": "", "text": "BAP 1997). The rationale for the rule is two-fold. First, it reflects the judicial doctrine which states that an appeal may be rendered moot when the occurrence of certain events prevents an appellate court from granting effective relief. Second, with respect to sales of estate property, the rule reflects the importance of encouraging finality in bankruptcy sales by protecting good-faith purchasers. Veltman v. Whetzal, 93 F.3d 517, 521 n. 4 (8th Cir.1996); In re CGI Indus., Inc., 27 F.3d at 299. The Eighth Circuit and other circuits have consistently adhered to the finality rule and held that failure to obtain a stay pending appeal of an order permitting sale of estate assets renders the appeal moot. Forbes, 215 B.R. at 192-193; Van Iperen v. Production Credit Ass’n (In re Van Iperen), 819 F.2d 189, 190 (8th Cir.1987) (holding that “[o]nce collateral is taken and converted into cash, no court is able to formulate adequate relief to the debtor.”); In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir.1994) (once a sale has gone forward, the positions of the interested parties have changed, and ... the court is faced with the unwelcome prospect of “un-scrambl[ing] an egg.”) quoted in, CGI Industries, Inc., 27 F.3d at 299-300; Markstein v. Massey Assocs., Ltd., 763 F.2d 1325 (11th Cir.1985); Park Plaza Assocs. Ltd. Partnership v. Connecticut Gen. Life Ins. Co. (In re 255 Park Plaza Assocs. Ltd. Partnership), 100 F.3d 1214 (6th Cir.1996). Because a stay pending appeal must be made in the first instance and, at a minimum, before transfer of the property sold, the Debtor’s request for stay contained in her Response to the Trustee’s Motion to Dismiss is denied. Further, upon review of the record, we find that the sale was properly noticed and that no grounds exist to conclude that Heartland’s purchase was contrary to public policy. The Trustee’s obligation in a Chapter 7 proceeding is to maximize value to the estate from liquidation of the debtor’s assets. The record reflects that Heartland’s successful bid exceeded the Debtor’s prior bid by several thousand dollars. When the Trustee originally sought" }, { "docid": "21160532", "title": "", "text": "moot inasmuch as Defendant failed to obtain a stay of the sale. Indeed, Defendant freely admits he took no appeal from the Order of Sale, and that the sale has been fully consummated. We agree with Plaintiff. Thus, we begin by dispelling any notion that we sit in review of the bankruptcy court’s Order of Sale. Defendant’s attempts to assail the validity of the bankruptcy court’s Order of Sale, however indirectly, are statutorily moot. Title 11 U.S.C. § 363(b) permits a bankruptcy trustee to “sell ... property of the estate” after notice and hearing. Once the bankruptcy court authorizes the sale of property under § 363, that same section limits appellate review: The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m). By its terms then, “[bjankruptcy’s mootness rule applies when an appellant has failed to obtain a stay from an order that permits a sale of a debtor’s assets.” In re 255 Park Plaza Assocs. Ltd. P’ship, 100 F.3d 1214, 1216 (6th Cir.1996) (internal quotation marks and citation omitted). What is more, it “limits appellate review of a consummated sale ... regardless of the merits of legal arguments raised against it.” In re Made in Detroit, Inc., 414 F.3d 576, 581 (6th Cir.2005) (emphasis added). A majority of our sister circuits construe § 363(m) as creating a per se rule automatically mooting appeals for failure to obtain a stay of the sale at issue. See In the Matter of The Ginther Trusts, 238 F.3d 686, 689 (5th Cir.2001); United States v. Salerno, 932 F.2d 117, 122-123 (2d Cir.1991); In re Stadium Mgmt. Corp., 895 F.2d 845, 847 (1st Cir.1990); Matter of Gilchrist, 891 F.2d 559, 561 (5th Cir.1990); In re The Charter" }, { "docid": "6632918", "title": "", "text": "this order and is treated as such by the parties to the appeal. II. Early in this appeal, the trustee (as well as the debtor) moved to dismiss the appeal on the grounds that Karbach had not obtained a stay pending appeal and that matter was therefore moot. The trustee relied on 11 U.S.C. § 363(m) and Bankruptcy Rule 805. We denied the motion without prejudice. A. Subsection (m) of section 363 provides in part that the “reversal.. .on appeal of an authorization under subsection (b) ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization .. . unless such authorization and such sale were stayed pending appeal.” Subsection (b) of section 363 provides that the trustee may sell property of the estate “other than in the ordinary course of business” after notice and hearing. We do not understand Karbach to have appealed from any order authorizing the trustee to sell property other than in the ordinary course of business. (There was no order reflected in the record). It has appealed instead from the order confirming the sale to Pierson and from the order declining to reopen the sale. Accordingly, the motion to dismiss the appeal is itself moot to the extent it relies on 11 U.S.C. § 363(m). B. Bankruptcy Rule 805 provides, in relevant part: “Unless an order approving a sale of property.. .is stayed pending appeal, the sale to a good faith purchaser... shall not be affected by the reversal or modification of such an order on appeal ...” Thus, in contrast with section 363(m), this rule applies to the actual sale (more accurately, to the order approving the actual sale) made pursuant to the authorization obtained under section 363(b). B.R. 805 is inapplicable to the trustee’s sale of personal property to Pierson because the trustee did not seek or obtain an order approving (confirming) that sale. The trustee did obtain an order permitting assumption and assignment of the leases, however, which we consider equivalent to an order approving sale for purposes of B.R. 805. However," }, { "docid": "1869789", "title": "", "text": "of the bankruptcy proceedings and Appellee subsequently received her share of the homestead exemption. Bankruptcy Rule 8005 authorizes a party to file a motion to stay a bankruptcy court order pending appeal. Fed.R.Bankr.P. 8005. Unless an order approving the sale of property is stayed pending appeal, the sale of such property to a good faith purchaser shall not be affected by the reversal or modification of the order on appeal. 11 U.S.C. § 363(m). Appellee has cited several cases wherein courts dismissed bankruptcy appeals as moot after the appellants failed to obtain stays of the bankruptcy proceedings. Those cases, however, involved situations where during the pendency of the appeal, the trustee sold property from the bankruptcy estate to third-party good faith purchasers. See, e.g., In re Onouli-Kona Land Co., 846 F.2d 1170 (9th Cir.1988); In re Royal Properties, Inc., 621 F.2d 984 (9th Cir.1980). The courts were concerned that modifying the bankruptcy court’s orders would have no practical effect because the purchasers were not parties to the judicial proceedings and could not be compelled to return the property. In re Onouli-Kona Land, 846 F.2d at 1173; In re Royal Properties, 621 F.2d at 987. The present ease, however, involves the trustee releasing funds to the Debtor/Appel-lee. Appellee has cited no eases supporting the proposition that this court or the bankruptcy court would be without jurisdiction to compel her to return funds to the Trustee. As such, she has not supported her contention that the issue of the validity of the homestead exemption is moot. Moreover, because Appellee’s remaining argument— that the appeal of the dismissal of the Garcia’s Adversary Complaint is also moot — is based solely on their contention that the issue of the validity of the homestead exemption is moot, that argument must necessarily fail. III. THE BANKRUPTCY APPEAL Having determined that it is without jurisdiction to consider the first issue raised in the Garcias’ Notice of Appeal, the court will turn to the remaining two. A. The Summary Judgment Ruling The bankruptcy court granted in part Ap-pellee’s motion for summary judgment on the Adversary Complaint and dismissed" }, { "docid": "20611520", "title": "", "text": "as to the leases, id. at 55:16-17. Hence the Court approved the sale and allowed Revel to sell its assets “free and clear of existing tenancies and/or possesso-ry rights, irrespective of any rights a tenant may hold under 11 U.S.C. § 365(h), including, but not limited to, all possessory rights.” Sale Order ¶ 14, In re Revel AC, Inc., No. 14-22654 (Bankr.D.N.J. Jan. 8, 2015), ECF No. 1138. IDEA appealed that order and moved to stay the Court’s decision pending appeal, noting the risk that, if the decision were not stayed, its appeal would be moot under 11 U.S.C. § 363(m) once the sale closed. That provision provides, in relevant part, that [t]he reversal or modification on appeal of an authorization ... of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal. 11 U.S.C. § 363(m). In a one-paragraph order, the Bankruptcy Court denied IDEA’S request. With its options dwindling and time winding down, IDEA filed an emergency motion before the District Court to stay the Bankruptcy Court’s sale order. E. The District Court Denies IDEA’S Stay Request In considering whether to grant a stay pending appeal, courts consider the following four factors: (1) whether the appellant has made a strong showing of the likelihood of success on the merits; (2) will the appellant suffer irreparable injury absent a stay; (3) would a stay substantially harm other parties with an interest in the litigation; and (4) whether a stay is in the public interest. See, e.g., Republic of Phil. v. Westinghouse Electric Corp., 949 F.2d 653, 658 (3d Cir.1991). Because IDEA is the only party before us, we limit our examination of the District Court’s ruling to its treatment of IDEA’S objections. 1. Likelihood of Success On the first prong, the District Court maintained that IDEA needed to show that it had a “substantial”" } ]

[ { "docid": "2153654", "title": "", "text": "the language requires.’ ” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-76, 77 L.Ed.2d 938 (1983) (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951) (footnote omitted) and Eastern Transp. Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927)). Section 1331 states that district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” However, it is well settled that section 1331 “implies no general waiver of sovereign immunity[ ],” and, therefore, cannot alone be relied upon as the basis of jurisdiction in this case. A.L. Rowan & Son, Gen. Contractors, Inc. v. Department of Hous. and Urban Dev., 611 F.2d 997, 1000 (5th Cir.1980); Garcia v. United States, 666 F.2d 960, 966 (5th Cir. Unit B), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). Section 113(b) of CERCLA grants the United States district courts original jurisdiction over all controversies arising under CERCLA, except as otherwise explicitly provided in subsections (a) and (h) of section 113. Like section 1331, however, section 113 contains no general waiver of the sovereign immunity of the United States. See, e.g., B.R. MacKay & Sons, Inc. v. United States, 633 F.Supp. 1290, 1296 (D.Utah 1986) (decided prior to SARA, case states that section 113(b) “does not operate to waive the United States’ sovereign immunity.” (footnote omitted)). At this juncture, VPG contends that the Administrative Procedure Act (APA) contains the waiver of sovereign immunity necessary for the adjudication of the case at hand. See 5 U.S.C. § 701 et seq. Section 702 of the APA provides, in relevant part, that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” See also Alabama v. EPA, 871 F.2d 1548, 1559 (11th Cir.1989) (Section 702 “creates a presumption that individuals can bring suit to challenge agency actions that cause legally cognizable injury.”), petition for cert. filed," } ]

[ { "docid": "12059947", "title": "", "text": "says the Indian remains and artifacts should be protected before work can begin to remove the poisons now present on its land. The district court dismissed Boarhead’s complaint against Edwin B. Erickson, Regional Administrator of the EPA, for lack of subject matter jurisdiction. See Boarhead Corp. v. Erickson, 726 F.Supp. 607 (E.D.Pa.1989). It held that the complaint must be dismissed because it did not meet the timing procedures for judicial review specified in § 113(h) of CERCLA, 42 U.S. C.A. § 9613(h). Relying on the reasoning of Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d 165 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990), the district court concluded that the Preservation Act did not trump § 113(h)’s jurisdictional limitations and that any claim Boarhead may have against the EPA or its officials under the Preservation Act can be asserted only in accordance with § 113’s review procedures. Boarhead says this ruling desecrates the remains of the Indians who first inhabited the region and risks destruction of the farm’s historical and archaeological value. Although the argument in favor of protecting our Indian heritage does not lack force even when advanced by a polluter, we hold that the district court did not err when it dismissed Boarhead’s complaint against Erickson for lack of subject matter jurisdiction. While a district court normally has federal question jurisdiction pursuant to 28 U.S.C.A. § 1331 (West Supp.1990) in a complaint arising under the Preservation Act and while the Administrative Procedures Act (APA), 5 U.S.C.A. §§ 701-706 (West 1977), establishes a presumptive right to judicial review, these normal means of review are not available when CERCLA is involved. The plain language of CERCLA §113 shows that Congress intended to deny the district courts jurisdiction to hear complaints challenging the EPA’s Superfund clean-up or preclean-up activities, even if a statute other than CERCLA ordi narily would create a federal claim. Similarly, the presumptive right to judicial review under the APA disappears because § 113 clearly precludes such review at this time. Boarhead’s claim that the Indian remains or the artifacts on the land" }, { "docid": "12059981", "title": "", "text": "Section 9604(e), EPA hereby requests that Boarhead Corporation provide EPA with any information that it has to support the contention that the Site, or any portion thereof, is eligible for listing on the [National Register] or is otherwise a sensitive cultural resource. Please provide any such comments within 10 days of the receipt of this letter to the undersigned. The Agency has also requested the comments of the Pennsylvania Historic Preservation Officer and Bucks County Historical Society on this matter. App. at 26. The EPA sent similar letters to the Pennsylvania Historic Preservation Officer, who is in charge of the Pennsylvania Historical and Museum Commission, an amicus curiae in this case, and to the Executive Director of the Bucks County Historical Society. The letters requested their views “on the existence of or means to identify any properties at or near the [Boarhead Farm] Site that are listed, or eligible for listing, on the [National Register].” Id. at 28, 30. . In its complaint, Boarhead also alleged that the EPA violated the Preservation Act when it failed to conduct a § 110 review. Since § 110 of the Preservation Act, 16 U.S.C.A. § 470h-2, deals with property the federal government owns or controls, it does not apply to Boarhead Farm. Boarhead, apparently realizing this, has not pursued this issue on appeal. . Section 305 of the Preservation Act reads: In any civil action brought in any United States district court by any interested person to enforce the provisions of this subchapter, if such person substantially prevails in such action, the court may award attorneys’ fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. 16 U.S.C.A. § 470w-4 (as added by Pub.L. No. 96-515, Title V, § 501, 94 Stat. 3002 (1980)). .Specifically, Erickson relied on several subsections of § 113 of CERCLA, 42 U.S.C.A. § 9613, in support of his assertion that the district court lacked jurisdiction over Boarhead’s complaint. With respect to the request to stay the EPA’s activity on Boarhead Farm until a § 106 review was conducted, he relied on" }, { "docid": "12059985", "title": "", "text": "certain clean-up costs the EPA expended pursuant to CERCLA. The government has waived sovereign immunity insofar as the APA gives Boarhead a right to judicial review. See 5 U.S.C.A. § 702: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in a official capacity or under color of legal authority shall not be dismissed nor relief there in be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States.... In addition, § 305 of the Preservation Act waives sovereign immunity insofar as Boarhead seeks attorneys’ fees in connection with this action. See Morris County Trust for Historic Preservation v. Pierce, 730 F.2d 94 (3d Cir.1983). In Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), we held that 5 U.S.C.A. § 702, as amended, waives sovereign immunity in equitable actions brought under § 1331 seeking \"nonstatutory” review of agency action. \"Nonstatutory” review describes those situations where a party's suit is not brought under a statute that explicitly provides for review of agency action. See id. at 718 n. 12. Other courts of appeals have agreed that § 702, as amended, waives the defense of sovereign immunity for injunctive actions brought pursuant to § 1331. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724-25 (2d Cir.1983); Warin v. Director, Dep't of the Treasury, 672 F.2d 590 (6th Cir.1982) (per curiam); Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981); Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982). Erickson's argument that sovereign immunity is not waived here because CERCLA overrides" }, { "docid": "12059948", "title": "", "text": "archaeological value. Although the argument in favor of protecting our Indian heritage does not lack force even when advanced by a polluter, we hold that the district court did not err when it dismissed Boarhead’s complaint against Erickson for lack of subject matter jurisdiction. While a district court normally has federal question jurisdiction pursuant to 28 U.S.C.A. § 1331 (West Supp.1990) in a complaint arising under the Preservation Act and while the Administrative Procedures Act (APA), 5 U.S.C.A. §§ 701-706 (West 1977), establishes a presumptive right to judicial review, these normal means of review are not available when CERCLA is involved. The plain language of CERCLA §113 shows that Congress intended to deny the district courts jurisdiction to hear complaints challenging the EPA’s Superfund clean-up or preclean-up activities, even if a statute other than CERCLA ordi narily would create a federal claim. Similarly, the presumptive right to judicial review under the APA disappears because § 113 clearly precludes such review at this time. Boarhead’s claim that the Indian remains or the artifacts on the land may suffer irreparable harm from delayed review of its complaint is unavailing. In § 113 Congress explicitly limited a district court’s power to hear Boarhead’s request for equitable relief while the EPA is continuing to perform clean-up related activities. Boarhead’s complaint does not fall within any of the five exceptions enumerated in § 113(h), and therefore the district court had no jurisdiction to entertain Boarhead’s action. Because § 113 clearly deprives the district court of jurisdiction, we will affirm the district court’s order dismissing Boarhead’s complaint. I. Boarhead Farm is a 118 acre tract of land Boarhead owns in upper Bucks County, Pennsylvania, near the Delaware Canal. Title to the property traces to a grant from William Penn. A late eighteenth century, largely stone farmhouse is part of the farm, stone field walls traverse the property and there may be archaeological or historical remains on the land. Boarhead says that the farm is eligible to be listed on the National Register of Historic Places. Most of the Boarhead Farm property is used as gamelands, but" }, { "docid": "12059992", "title": "", "text": "obvious intent to restrict jurisdiction over review of EPA actions under CERC-LA. ”[W]here, as here, Congress has established exclusive procedures for judicial review of a particular agency’s actions, [courts] are bound to follow those dictates.” Boarhead Corp., 726 F.Supp. at 612 (quoting Tricarico, 879 F.2d at 169 n. 15). . The Fifth Circuit noted that 28 U.S.C.A. § 2342 (West 1978 & Supp.1990) provides: The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; .... Tricarico, 879 F.2d at 167 n. 8. 47 U.S.C.A. § 402(b) (West 1962) provides that in certain enumerated situations, “[ajppeals may be taken from decisions and orders of the [FCC] to the United States Court of Appeals for the District of Columbia....” See Tricarico, 879 F.2d at 167 n. 9. . We note, however, that Erickson does not deny that the EPA is bound by the terms of the Preservation Act in conducting activities under CERCLA. In fact, he argues that the EPA's own regulations provide that it must consider the factors that go into a § 106 review. See CERC-LA Compliance with Other Laws Manual, Part II, Chapter 4, at 4-2 to 4-11 (Interim Final Aug. 1989), reprinted in App. at 34. The EPA properly construes the Preservation Act to require it to consider the historic preservation concerns Boarhead asserts before it takes action pursuant to CERCLA. Therefore, even though we construe § 113(h) to preclude jurisdiction over Boarhead’s complaint, since this would interfere with the EPA's clean-up activities without providing additional protection to the historic preservation interests the Preservation Act establishes, the EPA would be well advised to follow its own regulations and fully consider the impact preclean-up and clean-up activities may have on the historic value of Boarhead Farm and the artifacts and Indian remains buried there. Agency action is entitled to a presumption of regularity. See Citizens to Preserve" }, { "docid": "12059987", "title": "", "text": "the APA’s presumptive right to judicial review under 5 U.S.C.A. § 701(a)(1) does no more than ring the changes on his primary argument that § 113 of CERCLA eliminates the jurisdiction a district court may otherwise have to hear a case arising under the Preservation Act. It is simply another way of saying that § 113(h) prohibits a district court from hearing Boarhead’s complaint at this time. We thus will address the jurisdictional aspect of Erickson’s argument first, because its resolution makes it unnecessary to address separately the sovereign immunity component of that same argument. . On appeal to this Court, Boarhead relies in part on certain historic preservation statutes enacted in the State of Pennsylvania. Since Boarhead's complaint was premised on the federal Preservation Act, not on state law, we will not consider these arguments. We do note that Erickson is immune from suit based on state regulatory statutes like those Boarhead mentions absent a clear waiver of sovereign immunity. See Hancock v. Train, 426 U.S. 167, 178— 79, 96 S.Ct. 2006, 2012-13, 48 L.Ed.2d 555 (1976); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). . We cannot treat Boarhead’s complaint as a citizens suit under 42 U.S.C.A. § 9659, which in certain situations is not subject to the limits on jurisdiction § 113(h) imposes. See 42 U.S.C.A. § 9613(h)(4). Section 9659 provides: (a) Authority to bring civil actions Except as provided in subsections (d) and (e) of this section [requiring 60-day notice before a complaint is filed] and in section [113(h) of CERCLA] (relating to timing of judicial review), any person may commence a civil action on his own behalf— (1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter ...; or (2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency ...) where there" }, { "docid": "12059983", "title": "", "text": "§ 113(h). As has been noted, see supra note 3, Boarhead’s complaint did not fit into any of the five exceptions specified in that subsection. As for Boarhead’s request to strike its name from the National Priorities List, Erickson relied on § 113(a): Review of any regulation promulgated under this chapter [i.e., under CERCLA] may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain damages or recovery of response costs. 42 U.S.C.A. § 9613(a). Placement of a site on the National Priorities List is treated as the promulgation of a regulation. See D’Imperio v. United States, 575 F.Supp. 248, 254 (D.N.J.1983). He noted that Boarhead’s complaint was not filed in the District of Columbia Circuit, nor was it filed within 90 days of when Boarhead Farm was added to the National Priorities List. . Because the district court held that Boar-head’s complaint should be dismissed for lack of jurisdiction, it did not directly confront Erickson’s argument that the dispute was unripe. See Boarhead Corp., 726 F.Supp. at 613. . Erickson argues that the portion of Boar-head’s brief quoted in the text is misleading, since § 1331, standing alone, does not authorize an action against an official of the EPA in the absence of a waiver of the government's sovereign immunity. See Brief for Appellee at 20 n. 16. He cites Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir.1989), where the Fifth Circuit stated that § 1331 implies no general waiver of sovereign immunity and thus a chemical manufacturer could not rely upon it as the basis for jurisdiction in a declaratory judgment action against the EPA. In Voluntary Purchasing Groups, a chemical manufacturer sought a declaration that it was not liable for" }, { "docid": "12059951", "title": "", "text": "under CERCLA, including “expedited response actions,” “emergency removal actions” and “implementing the EPA-approved remedial option.” Id. at 23. Boarhead told the EPA in its reply that Boarhead Farm was eligible to be listed as a historic place and asked the EPA whether it had performed a § 106 review under the Preservation Act. The EPA told Boarhead in a letter dated September 19, 1989, that although it had not conducted a formal § 106 review, any appropriate historic preservation issues would be duly considered as part of its established CERCLA procedures. See App. at 26. Before it received the EPA’s response, Boarhead went to court and filed a complaint in the United States District Court for the Eastern District of Pennsylvania on July 10, 1989. In the complaint Boarhead asked the district court to strike Boar-head’s name from the National Priorities List and sought a stay of any EPA activities affecting Boarhead Farm. Boarhead asserted that the district court had subject matter jurisdiction to issue such an order pursuant to the Preservation Act because Boarhead Farm was a historic piece of property and met the requirements for listing on the National Register of Historic Places. The complaint went on to say that the EPA had failed to conduct a § 106 review, as the Preservation Act and regulations promulgated pursuant to the Act, see 36 C.F.R. §§ 800.1-800.15 (1989), required. Review under § 106 of the Preservation Act was designed to expose federal agencies to expertise the Advisory Council on Historic Preservation and state historic preservation officers provided and to force the agencies to consider alternate approaches to problems in order to minimize the damage to historic property without frustrating the agencies in fulfilling their obligations under federal law. Boarhead asked the district court to prohibit the EPA from taking further action on Boarhead Farm until the EPA completed a § 106 review. Boarhead also requested monetary damages for the EPA’s interference with its right to quiet enjoyment of its property and reasonable attorneys’ fees pursuant to § 305 of the Preservation Act. Erickson, the EPA’s Regional Administrator named as" }, { "docid": "12059946", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. This appeal presents the conflicting demands two federal statutes — the National Historic Preservation Act of 1966 (Preservation Act), as amended, 16 U.S.C.A. §§ 470 to 470w-6 (West 1985 & Supp.1990), and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C.A. §§ 9601-9675 (West 1983 & Supp.1990)— place upon the Environmental Protection Agency (EPA) when the EPA decides to conduct preclean-up studies on a Superfund site that is also eligible to be listed as a historic place. We must determine whether the district court had jurisdiction to hear a property owner’s request, brought pursuant to the Preservation Act, to stay • the EPA’s CERCLA-related preclean-up activities until the EPA conducts appropriate review under § 106 of the Preservation Act, 16 U.S.C.A. § 470f. The property owner, Boarhead Corporation (Boarhead), owns a farm. American Indians who once roamed the region used part of the farm as a burial ground. In this century, Boarhead exposed parts of the farm to toxic waste. Boarhead now says the Indian remains and artifacts should be protected before work can begin to remove the poisons now present on its land. The district court dismissed Boarhead’s complaint against Edwin B. Erickson, Regional Administrator of the EPA, for lack of subject matter jurisdiction. See Boarhead Corp. v. Erickson, 726 F.Supp. 607 (E.D.Pa.1989). It held that the complaint must be dismissed because it did not meet the timing procedures for judicial review specified in § 113(h) of CERCLA, 42 U.S. C.A. § 9613(h). Relying on the reasoning of Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d 165 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990), the district court concluded that the Preservation Act did not trump § 113(h)’s jurisdictional limitations and that any claim Boarhead may have against the EPA or its officials under the Preservation Act can be asserted only in accordance with § 113’s review procedures. Boarhead says this ruling desecrates the remains of the Indians who first inhabited the region and risks destruction of the farm’s historical and" }, { "docid": "12059954", "title": "", "text": "prospect of such actions, [Boarhead] prematurely seeks review of the EPA’s anticipated actions. Under § 9613(h), [Boarhead] cannot seek review in a federal court of the EPA’s removal or remedial actions until either an enforcement or cost-recovery action has commenced under §§ 9606 or 9607, or removal and any remedial action has been completed. [Boarhead] alleges, however, only that the “EPA intends to perform or cause the performing of extensive tests, explorations and other activities on Boarhead Farm.” Boarhead Corp., 726 F.Supp. at 611 (footnote omitted). Boarhead has timely appealed to this Court. II. We have appellate jurisdiction pursuant to 28 U.S.C.A. § 1291 (West Supp. 1990) over the district court’s final order granting Erickson’s motion to dismiss and dismissing Boarhead’s complaint. We exercise plenary review over the question of whether the district court lacked jurisdiction to hear Boarhead’s complaint. See York Bank & Trust Co. v. Federal Sav. & Loan Ins. Corp., 851 F.2d 637, 638 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989). As with any motion to dismiss, “[w]e accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them.” Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). III. At the outset, the parties to this appeal now agree that the district court was correct when it dismissed that portion of Boarhead’s complaint seeking to have its name removed from the National Priorities List. See Brief for Appellant at 16; Brief for Appellee at 15 n. 15; see also Brief for Amici at 13 & n. 14. The parties are correct. As § 113(a) of CERCLA, 42 U.S.C.A. § 9613(a), provides, review of this action may be had only upon proper and timely application in the United States Court of Appeals for the District of Columbia Circuit. See United States v. Ottati & Goss, 694 F.Supp. 977, 984 (D.N.H.1988), modified on other grounds, 900 F.2d 429 (1st Cir.1990); D’Imperio v. United States, 575 F.Supp. 248, 254 (D.N.J.1983). Boarhead did not make a proper or timely application for removal from the" }, { "docid": "7424478", "title": "", "text": "MEMORANDUM O’NEILL, District Judge. On March 31, 1989, the Environmental Protection Agency (“EPA”) placed Boar-head Farms, a 118 acre parcel of land located in Bridgeton Township, Bucks County, Pennsylvania, on the National Priorities List (“NPL”) of sites which may pose substantial risks to public health and welfare due to the presence of released hazardous substances, pollutants or contaminants. 40 C.F.R. Part 300, Appendix B. Plaintiff Boarhead Corporation, the owner of Boar-head Farms, filed the present action on July 10, 1989, against defendant Edwin B. Erickson, as regional administrator of the EPA, under the National Historic Preservation Act of 1966 (“NHPA”), 16 U.S.C. § 470 et seq. Plaintiff seeks an order striking Boarhead Farms from the NPL and staying all EPA activity with respect to Boar-head Farms until the EPA has complied with the NHPA, as well as damages for interference with plaintiff’s right of quiet enjoyment of the property. Defendant has moved to dismiss the complaint on the grounds that this Court lacks subject matter jurisdiction over plaintiff’s claims, and that plaintiff’s claims are not ripe. For the reasons that follow, I will grant defendant’s motion. Background The Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., authorizes the EPA to undertake removal or remedial action whenever there is a “release or substantial threat of release into the environment” of “any hazardous substance” or of “any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.” 42 U.S.C. § 9604. Section 107(a) of CERCLA imposes liability for incurred response costs, including the costs of removal or remedial action, on “responsible parties,” defined to include past or present owners or operators of a site, as well as parties who generated, transported or accepted hazardous substances. 42 U.S.C. § 9607(a). This section also pro vides that a federal lien can be placed on a site and used as a basis for recovery by the United States to the extent that response costs are not recovered from responsible parties; recovery on the lien may occur only through an in rem action" }, { "docid": "12059982", "title": "", "text": "failed to conduct a § 110 review. Since § 110 of the Preservation Act, 16 U.S.C.A. § 470h-2, deals with property the federal government owns or controls, it does not apply to Boarhead Farm. Boarhead, apparently realizing this, has not pursued this issue on appeal. . Section 305 of the Preservation Act reads: In any civil action brought in any United States district court by any interested person to enforce the provisions of this subchapter, if such person substantially prevails in such action, the court may award attorneys’ fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. 16 U.S.C.A. § 470w-4 (as added by Pub.L. No. 96-515, Title V, § 501, 94 Stat. 3002 (1980)). .Specifically, Erickson relied on several subsections of § 113 of CERCLA, 42 U.S.C.A. § 9613, in support of his assertion that the district court lacked jurisdiction over Boarhead’s complaint. With respect to the request to stay the EPA’s activity on Boarhead Farm until a § 106 review was conducted, he relied on § 113(h). As has been noted, see supra note 3, Boarhead’s complaint did not fit into any of the five exceptions specified in that subsection. As for Boarhead’s request to strike its name from the National Priorities List, Erickson relied on § 113(a): Review of any regulation promulgated under this chapter [i.e., under CERCLA] may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain damages or recovery of response costs. 42 U.S.C.A. § 9613(a). Placement of a site on the National Priorities List is treated as the promulgation of a regulation. See D’Imperio v. United States, 575 F.Supp. 248, 254 (D.N.J.1983). He noted that Boarhead’s complaint was not filed in the" }, { "docid": "12059961", "title": "", "text": "imposes. Boarhead’s complaint asserts more than a violation of the Preservation Act. Although the claim is said to arise under the Preservation Act, Erickson asserts that the jurisdictional question must be analyzed under CERCLA since the complaint primarily challenges the EPA’s preclean-up activities at a designated Superfund site. Section 113 of CERCLA, according to Erickson, precludes a district court from exercising jurisdiction under the Preservation Act on Boarhead’s claims, at least at this time. The district court recognized in its memorandum opinion, see 726 F.Supp. at 610, that the plain language of § 113 shows Congress’s intent to limit a private party’s ability to challenge the EPA’s activities under CERCLA until the EPA has completed its clean-up of a hazardous site. Section 113(h) of CERCLA states that [n]o Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section [121 of CERCLA] (relating to cleanup standards) to review any challenges to removal or remedial action selected under section [104 of CERCLA], unless one of five specific situations is present. See 42 U.S.C.A. § 9613(h). It is at once apparent that neither § 1332 nor state law gives the district court jurisdiction to hear Boarhead’s complaint challenging the EPA’s ability to conduct an RI/FS study pursuant to § 104 of CERCLA before the EPA performs an appropriate review under § 106 of the Preservation Act. Furthermore, it is undisputed that Boar-head’s complaint does not meet any of the five exceptions enumerated in § 113(h). The limits § 113(h) imposes on a district court’s jurisdiction are an integral part of Congress’s overall goal that CERCLA free the EPA to. conduct forthwith clean-up related activities at a hazardous site. Congress enacted CERCLA so that the EPA would have the authority and the funds necessary to respond expeditiously to serious hazards without being stopped in its tracks by legal entanglement before or during the hazard clean-up. See Wheaton Indus.. v. United States EPA, 781 F.2d 354, 356 (3d Cir.1986); Lone" }, { "docid": "12059986", "title": "", "text": "cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), we held that 5 U.S.C.A. § 702, as amended, waives sovereign immunity in equitable actions brought under § 1331 seeking \"nonstatutory” review of agency action. \"Nonstatutory” review describes those situations where a party's suit is not brought under a statute that explicitly provides for review of agency action. See id. at 718 n. 12. Other courts of appeals have agreed that § 702, as amended, waives the defense of sovereign immunity for injunctive actions brought pursuant to § 1331. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724-25 (2d Cir.1983); Warin v. Director, Dep't of the Treasury, 672 F.2d 590 (6th Cir.1982) (per curiam); Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981); Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982). Erickson's argument that sovereign immunity is not waived here because CERCLA overrides the APA’s presumptive right to judicial review under 5 U.S.C.A. § 701(a)(1) does no more than ring the changes on his primary argument that § 113 of CERCLA eliminates the jurisdiction a district court may otherwise have to hear a case arising under the Preservation Act. It is simply another way of saying that § 113(h) prohibits a district court from hearing Boarhead’s complaint at this time. We thus will address the jurisdictional aspect of Erickson’s argument first, because its resolution makes it unnecessary to address separately the sovereign immunity component of that same argument. . On appeal to this Court, Boarhead relies in part on certain historic preservation statutes enacted in the State of Pennsylvania. Since Boarhead's complaint was premised on the federal Preservation Act, not on state law, we will not consider these arguments. We do note that Erickson is immune from suit based on state regulatory statutes like those Boarhead mentions absent a clear waiver of sovereign immunity. See Hancock v. Train, 426 U.S. 167, 178— 79, 96 S.Ct. 2006, 2012-13, 48" }, { "docid": "12059950", "title": "", "text": "the developed portion includes a private residence, a horse farm and a machinery servicing/repair shop for construction and transport vehicles. Adjacent to the gamelands are two large automobile graveyards. In the early- and mid-1970’s, three or four serious chemical spills from trucks hauling chemicals and waste for Boarhead’s president occurred on the property. On March 31, 1989, after concluding that there was a significant risk that hazardous substances would be released at Boarhead Farm and after giving interested parties the appropriate notice and comment period, the EPA designated the property as a Superfund site on its National Priorities List. Thereafter, on May 18, 1989, the EPA sent Boarhead a letter telling Boarhead that the EPA intended to conduct several studies to determine the extent of the problem and that it considered Boarhead a “potentially responsible party” for the contamination. See Appellant’s Appendix (App.) at 22. The intended studies would include a Remedial Investigation and Feasibility Study (RI/FS) for remedial action. Depending on what was discovered, the EPA explained that it could take other responsive steps under CERCLA, including “expedited response actions,” “emergency removal actions” and “implementing the EPA-approved remedial option.” Id. at 23. Boarhead told the EPA in its reply that Boarhead Farm was eligible to be listed as a historic place and asked the EPA whether it had performed a § 106 review under the Preservation Act. The EPA told Boarhead in a letter dated September 19, 1989, that although it had not conducted a formal § 106 review, any appropriate historic preservation issues would be duly considered as part of its established CERCLA procedures. See App. at 26. Before it received the EPA’s response, Boarhead went to court and filed a complaint in the United States District Court for the Eastern District of Pennsylvania on July 10, 1989. In the complaint Boarhead asked the district court to strike Boar-head’s name from the National Priorities List and sought a stay of any EPA activities affecting Boarhead Farm. Boarhead asserted that the district court had subject matter jurisdiction to issue such an order pursuant to the Preservation Act because Boarhead" }, { "docid": "12059952", "title": "", "text": "Farm was a historic piece of property and met the requirements for listing on the National Register of Historic Places. The complaint went on to say that the EPA had failed to conduct a § 106 review, as the Preservation Act and regulations promulgated pursuant to the Act, see 36 C.F.R. §§ 800.1-800.15 (1989), required. Review under § 106 of the Preservation Act was designed to expose federal agencies to expertise the Advisory Council on Historic Preservation and state historic preservation officers provided and to force the agencies to consider alternate approaches to problems in order to minimize the damage to historic property without frustrating the agencies in fulfilling their obligations under federal law. Boarhead asked the district court to prohibit the EPA from taking further action on Boarhead Farm until the EPA completed a § 106 review. Boarhead also requested monetary damages for the EPA’s interference with its right to quiet enjoyment of its property and reasonable attorneys’ fees pursuant to § 305 of the Preservation Act. Erickson, the EPA’s Regional Administrator named as defendant in the suit, moved to dismiss Boarhead’s complaint. He asserted that the district court did not have subject matter jurisdiction over Boar-head’s claims. Alternately, Erickson argued that Boarhead’s complaint was not ripe because the EPA had not yet done anything that would damage any historic resource on Boarhead Farm. On December 15, 1989, the district court issued its order and memorandum opinion granting Erickson’s motion to dismiss. The court held that it did not have jurisdiction to hear Boarhead’s complaint. It wrote: [Boarhead’s] claims in the present action can be asserted only in accordance with § 9613. To the extent [Boarhead] seeks removal of Boarhead Farms from the [National Priorities List], or damages for the listing of Boarhead Farms on the [list], [Boarhead] seeks review of the [list], and can assert its claim only in the Court of Appeals for the District of Columbia Circuit. To the extent that [Boar-head] seeks an order staying the EPA from conducting an RI/FS or other removal or remedial actions on Boarhead Farms, or damages attributed to the" }, { "docid": "12059984", "title": "", "text": "District of Columbia Circuit, nor was it filed within 90 days of when Boarhead Farm was added to the National Priorities List. . Because the district court held that Boar-head’s complaint should be dismissed for lack of jurisdiction, it did not directly confront Erickson’s argument that the dispute was unripe. See Boarhead Corp., 726 F.Supp. at 613. . Erickson argues that the portion of Boar-head’s brief quoted in the text is misleading, since § 1331, standing alone, does not authorize an action against an official of the EPA in the absence of a waiver of the government's sovereign immunity. See Brief for Appellee at 20 n. 16. He cites Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir.1989), where the Fifth Circuit stated that § 1331 implies no general waiver of sovereign immunity and thus a chemical manufacturer could not rely upon it as the basis for jurisdiction in a declaratory judgment action against the EPA. In Voluntary Purchasing Groups, a chemical manufacturer sought a declaration that it was not liable for certain clean-up costs the EPA expended pursuant to CERCLA. The government has waived sovereign immunity insofar as the APA gives Boarhead a right to judicial review. See 5 U.S.C.A. § 702: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in a official capacity or under color of legal authority shall not be dismissed nor relief there in be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States.... In addition, § 305 of the Preservation Act waives sovereign immunity insofar as Boarhead seeks attorneys’ fees in connection with this action. See Morris County Trust for Historic Preservation v. Pierce, 730 F.2d 94 (3d Cir.1983). In Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.)," }, { "docid": "12059973", "title": "", "text": "Superfund sites outweighed it. Boarhead’s remedy lies with Congress, not the district court. The prohibition on jurisdiction includes a prohibition on equitable relief. Section 113(h) prohibits the district court from hearing Boarhead’s complaint at this time, before the EPA takes any further action on Boar-head Farm. V. Boarhead and the amici also argue that the EPA’s alleged violations of the Preservation Act are presumptively subject to judicial review under the APA. The APA, in § 702, states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” For purposes of § 702, “agency action” includes the failure to act. See 5 U.S.C.A. § 701(b)(2) (cross-referencing 5 U.S.C.A. § 551(13) (West 1977)). Judicial review is not available under the APA when another statute, such as CERC-LA, precludes such review, see 5 U.S.C.A. § 701(a)(1). Boarhead and the amici argue that there is no clear and convincing evidence that Congress intended CERCLA to preclude review in this situation, where Boarhead’s complaint arises under the Preservation Act and irreparable harm may occur before any review would be permitted under § 113 of CERCLA. It is well-established that “only upon a showing of clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 380, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962)). For further support, Boarhead and the amici rely on 5 U.S.C.A. § 703: The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction_ Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is" }, { "docid": "12059972", "title": "", "text": "jurisdiction over action seeking to compel Atomic Energy Commission (AEC) to prepare an environmental impact statement, as the Environmental Policy Act required, even though statute established exclusive jurisdiction in court of appeals for review of final AEC orders, because review was unavailable or inadequate in court of appeals). In Susquehanna Valley we refused to construe the Environmental Policy Act and associated regulations in a way that would deny the plaintiffs adequate judicial review of their complaint. However, the statute there, unlike § 113(h), did not expressly preclude jurisdiction. CERCLA’s timing of review procedures, as established in § 113(h), clearly preclude jurisdiction to delay or interfere with EPA clean-up activities even if those activities could irreparably harm the archaeological or historical resources on Boarhead Farm. Although post-study judicial review cannot rectify damage to historical artifacts or remains on this landmark site that occurs in the course of the EPA’s clean-up, we must presume Congress balanced the problem of irreparable harm to such interests and concluded that the interest in removing the hazard of toxic waste from Superfund sites outweighed it. Boarhead’s remedy lies with Congress, not the district court. The prohibition on jurisdiction includes a prohibition on equitable relief. Section 113(h) prohibits the district court from hearing Boarhead’s complaint at this time, before the EPA takes any further action on Boar-head Farm. V. Boarhead and the amici also argue that the EPA’s alleged violations of the Preservation Act are presumptively subject to judicial review under the APA. The APA, in § 702, states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” For purposes of § 702, “agency action” includes the failure to act. See 5 U.S.C.A. § 701(b)(2) (cross-referencing 5 U.S.C.A. § 551(13) (West 1977)). Judicial review is not available under the APA when another statute, such as CERC-LA, precludes such review, see 5 U.S.C.A. § 701(a)(1). Boarhead and the amici argue that there is no clear and convincing evidence that Congress intended CERCLA to preclude review in" }, { "docid": "12059953", "title": "", "text": "defendant in the suit, moved to dismiss Boarhead’s complaint. He asserted that the district court did not have subject matter jurisdiction over Boar-head’s claims. Alternately, Erickson argued that Boarhead’s complaint was not ripe because the EPA had not yet done anything that would damage any historic resource on Boarhead Farm. On December 15, 1989, the district court issued its order and memorandum opinion granting Erickson’s motion to dismiss. The court held that it did not have jurisdiction to hear Boarhead’s complaint. It wrote: [Boarhead’s] claims in the present action can be asserted only in accordance with § 9613. To the extent [Boarhead] seeks removal of Boarhead Farms from the [National Priorities List], or damages for the listing of Boarhead Farms on the [list], [Boarhead] seeks review of the [list], and can assert its claim only in the Court of Appeals for the District of Columbia Circuit. To the extent that [Boar-head] seeks an order staying the EPA from conducting an RI/FS or other removal or remedial actions on Boarhead Farms, or damages attributed to the prospect of such actions, [Boarhead] prematurely seeks review of the EPA’s anticipated actions. Under § 9613(h), [Boarhead] cannot seek review in a federal court of the EPA’s removal or remedial actions until either an enforcement or cost-recovery action has commenced under §§ 9606 or 9607, or removal and any remedial action has been completed. [Boarhead] alleges, however, only that the “EPA intends to perform or cause the performing of extensive tests, explorations and other activities on Boarhead Farm.” Boarhead Corp., 726 F.Supp. at 611 (footnote omitted). Boarhead has timely appealed to this Court. II. We have appellate jurisdiction pursuant to 28 U.S.C.A. § 1291 (West Supp. 1990) over the district court’s final order granting Erickson’s motion to dismiss and dismissing Boarhead’s complaint. We exercise plenary review over the question of whether the district court lacked jurisdiction to hear Boarhead’s complaint. See York Bank & Trust Co. v. Federal Sav. & Loan Ins. Corp., 851 F.2d 637, 638 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989). As with any motion" } ]

[ { "docid": "7720233", "title": "", "text": "MEMORANDUM OPINION AND ORDER CONLON, District Judge. Plaintiff Illinois Bell Telephone Company (“IBT”) brought this action for copyright infringement under Title 17 of the United States Code against defendants Haines and Company, Inc., Haines Criss + Cross Publishers, Inc., William K. Haines, Sr., and William K. Haines, Jr. (collectively “Haines”). Now before the court is Haines’ motion to dismiss or, alternatively, for partial summary judgment. IBT brings a cross-motion for partial summary judgment. For the following reasons, IBT’s motion for summary judgment is granted on the issue of liability. Factual Background The Parties and Their Directories IBT is a public utility that provides telephone service. The Illinois Administrative Code requires IBT to publish and distribute telephone directories to its consumers. 83 Ill.Admin.Code § 735.180; Deposition of David Winton, IBT District Manager-Directory (“Winton Dep.”), p. 201. The content of these directories, commonly known as “white pages,” primarily is comprised of alphabetical listings of IBT’s customers, followed by their respective addresses and telephone numbers. Other features of the directories are not at issue here. The source for each listing is the IBT customer. When a customer initially receives telephone service, the customer’s preference as to a listed name is placed on a service order and a telephone number is assigned. Winton Dep., p. 204. The contents of the service order are entered into IBT’s computer system, where editing and verification take place in a number of different steps. Winton Dep., pp. 99-100, 204-210. Some manual correction and proofreading occurs. Winton Dep., pp. 198, 205, 221, 234-235. Haines publishes cross reference directories under the trademark Criss + Cross. Declaration of James A. McGeorge, Vice President of Haines and Company, Inc., at ¶ 2 (“McGeorge Deck”). Each directory contains an “Addressakey,” or street address directory, and a “Telokey,” or telephone numerical directory. See Arden Exhibit 1. The Addressakey lists all streets in an area in alphabetical order. Each street and its town are capitalized in a bold typeface and are followed by the zip code. Beneath each street listing, addresses are listed in ascending numerical order. Adjacent to the address is the resident’s last" } ]

[ { "docid": "16570057", "title": "", "text": "Proof of actual knowledge of the infringement is not necessary; reckless disregard for the copyright holder’s rights may establish knowledge of the infringement. See id. at 380 n. 10. IBT claims Haines willfully infringed its copyright. Haines paid for the listing information for almost ten years before it elected not to renew the license agreement. Haines continued to use IBT’s published directories despite correspondence from IBT in April 1983 and June 1984, demanding restitution and ordering Haines to cease using the listings. McDowall Deck at Ex. C, F. Haines maintains it did not willfully infringe because it acted under a good faith belief that its conduct did not constitute infringement. Haines’ memo, at 12. Haines argues that licenses previously were not required to publish telephone company listings in street address directories, and that copyright law concerning the protecting of compilations is unsettled. Id. at 12-14. Haines allegedly elected to enter into the license agreement with IBT to obtain pre-publication information. The license agreement between IBT and Haines does not contain a provision that binds Haines to acknowledge IBT’s copyright. Haines claims it was assured by its attorney that the agreement did not preclude its right to contest the validity of IBT’s copyright at a later date. Id. at 11. An opinion letter from Haines’ counsel prepared May 13, 1970 is submitted. See Haines Deck at ¶ 7 and Ex. D. Haines’ contention that it acted in good faith and did not willfully violate IBT’s copyright is a question of fact. See International Korwin Corp. v. Kowalczyk, 855 F.2d at 379-80. The record supports more than one inference and raises a genuine issue of fact as to Haines’ willfulness. The court will not weigh the evidence on a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). Although the court cannot determine whether Haines’ infringement was willful based upon the record, IBT requests that the court calculate statutory damages under 17 U.S.C. § 504(c)(1). This section authorizes an award of $250 to $10,000 per infringement without requiring a" }, { "docid": "16570069", "title": "", "text": "at 37. Haines contends that the high price charged for the listing information would put Haines out of business and deny Haines access to an essential facility. An essential facility is one that cannot reasonably be duplicated and is necessary to compete. Fishman v. Estate of Wirtz, 807 F.2d 520, 539 (7th Cir.1986). The essential facilities doctrine imposes upon the controller of an essential facility the obligation to make the facility available to competitors on nondiscriminatory terms. Id. Assuming the listing for street address directories constitutes an essential facility, Haines has not shown that IBT discriminated against Haines as compared with other publishers. Haines obtains listing information under IBT’s standard licensing agreement. IBT charges uniform rates to all directory publishers who receive listings under the standard licensing agreement. McDowall Dep. at 37, 51-52; Winton Dep. at 42, 96. Since 1971, IBT has charged Haines the same price per listing as it charges non-affiliated co-bound directory publishers. McDowall Dep. at 33, 37, 51-52, 71-74, 80; Winton Dep. at 96. Donnel-ley does not receive its listings from IBT under a standard licensing agreement. IBT/Ameritech’s reply at 4. There is no evidence to suggest that Haines ever sought the services or contract terms IBT provides counter-defendants, for which counter-defendants pay IBT $75 million annually. Haines argues that its costs ultimately are greater because, unlike co-bound directory publishers, Haines cannot simply reproduce the listings but must conduct extensive independent research, editing, verification, correction and rearrangement of information. Haines’ memo, at 7. IBT does not dictate the format of the directories that publishers produce. IBT/Ameri-tech’s reply at 4. The record reflects that had Haines requested, IBT would have provided the listings in a different format and charged Haines for the service. McDowall Dep. at 47, 48, 53. Haines contends that IBT unreasonably raised its rates for co-bound directory publishers. Between 1981 and 1987, IBT allegedly increased its rates 2400% for residential listings and 3600% for business listings. W.K. Haines Decl. at 11 2; Hill Deck at 11 6. IBT explains that the 1986 price increase was the result of IBT’s conversion from cost-based pricing to" }, { "docid": "16570068", "title": "", "text": "per listing. McDowall Decl. at ¡Í ¶ 4-6 and Ex. B and C. Donnelley paid $800,725 for listings, billing and collection services for its 1983 directories. Donnelley paid $914,947 for listings, billing and collection services for its 1984 directories. Id. at ¶ 9. Although Donnelley was not billed on a per listing basis, the amounts charged do not support an inference that Donnelley paid less for IBT listings in 1983 and 1984 than Haines paid for the same listings. Haines’ contention that, under the terms of its agreement with IBT, Donnelley is guaranteed a profit (and therefore pays less for listing information) is not supported by the record. See O’Brien Dep. at 75, 80. Prior to 1985, Donnelley was provided with listings and paid IBT “the difference between Donnelley’s gross revenues and its costs, including a fixed percentage of those revenues.... ” O’Brien Decl. at 115. Under the ten-year agreement executed in July 1984, Donnelley (through AM-DON, its partnership with Ameritech-Illinois) agreed to pay IBT at least $75 million per year. O’Brien Dep., Ex. 12 at 37. Haines contends that the high price charged for the listing information would put Haines out of business and deny Haines access to an essential facility. An essential facility is one that cannot reasonably be duplicated and is necessary to compete. Fishman v. Estate of Wirtz, 807 F.2d 520, 539 (7th Cir.1986). The essential facilities doctrine imposes upon the controller of an essential facility the obligation to make the facility available to competitors on nondiscriminatory terms. Id. Assuming the listing for street address directories constitutes an essential facility, Haines has not shown that IBT discriminated against Haines as compared with other publishers. Haines obtains listing information under IBT’s standard licensing agreement. IBT charges uniform rates to all directory publishers who receive listings under the standard licensing agreement. McDowall Dep. at 37, 51-52; Winton Dep. at 42, 96. Since 1971, IBT has charged Haines the same price per listing as it charges non-affiliated co-bound directory publishers. McDowall Dep. at 33, 37, 51-52, 71-74, 80; Winton Dep. at 96. Donnel-ley does not receive its listings from" }, { "docid": "16570061", "title": "", "text": "Haines to make restitution and thereby avoid litigation. McDowall Decl. 11115, 6 and Ex. C, F. Haines made no attempt to resolve the matter with IBT. Had Haines elected to discuss the charges with IBT, this litigation may not have been necessary. An award of IBT’s costs and reasonable attorneys’ fees is appropriate. Injunctive Relief The Copyright Act empowers a court to grant injunctions on terms deemed reasonable to prevent or restrain infringement of a copyright. 17 U.S.C. § 502(a). An injunction is appropriate when defendant’s infringing activities have continued for an extended period of time and it appears that, absent a court order, defendant will continue to infringe plaintiff’s copyright. See International Korwin Corp. v. Kowalczyk, 665 F.Supp. 652, 658 (N.D. Ill.1987), aff'd, 855 F.2d 375 (7th Cir.1988). A permanent injunction is particularly appropriate where a threat of continuing infringement exists. Broadcast Music, Inc. v. Niro’s Palace, Inc., 619 F.Supp. at 963. The record establishes that Haines used published IBT directories in preparing its 1985, 1986 and 1987 directories. See McGeorge Dep. at 62-70. Haines continued to use the IBT directories despite written notices of infringement and demands to stop. In his declaration, McGeorge concedes that Haines’ Chicago area directories “use information appearing in [IBT’s] alphabetical telephone directories.” McGeorge Decl. at 1139. Therefore, the unauthorized use of IBT’s directories has continued beyond infringement of IBT’s 1982 and 1983 directories. The threat of continuing infringement warrants a permanent injunction. See Broadcast Music, Inc. v. Niro’s Palace, Inc., 619 F.Supp. at 963. II. Counter-defendants’ Motion for Summary Judgment on Haines’ Counterclaim Section 1 of the Sherman Act Count III alleges counter-defendants combined and conspired to use the listing information to restrain trade in the Chicago area street address directory mar ket in violation of Section 1 of the Sherman Act. Counterclaim ¶ 22. Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.... ” 15 U.S.C. § 1. To establish a Section 1 claim, Haines must prove (1) a conspiracy in restraint" }, { "docid": "16570053", "title": "", "text": "receives a minimum of $75 million annually. O’Brien Ex. 12 at 34. The agreement does not restrict IBT’s alternative uses of the listing information during the contract term. Arden Ex. G at 37-38. Haines contends that IBT, Ameritech, Ameritech-Illinois, Donnelley and AM-DON misused IBT’s copyright to restrain trade in violation of Section 1 of the Sherman Act (15 U.S.C. § 1) and conspired to monopolize, attempted to monopolize, and monopolized the market for street address directories in the Chicago area in violation of Section 2 of the Sherman Act (15 U.S.C. § 2). Haines also charges that counter-defendants’ conduct violated the analogous provisions of the Illinois Antitrust Act (Ill. Rev. Stat. ch. 38 ¶ 60-3) and Section 4 of the Clayton Act (15 U.S.C. § 15). DISCUSSION A party is entitled to judgment where the pleadings, depositions, affidavits and other supporting materials show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment is appropriate in antitrust litigation unless the non-movant presents sufficient evidence to survive a motion for directed verdict. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476 (7th Cir.1988) (the mere existence of a triable issue is no longer sufficient). Fed. R.Civ.P. 56(c) mandates the entry of summary judgment against parties who fail to establish the existence of an essential element of their case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). I. IBT’s Motion for Summary Judgment on Statutory Damages, Attorneys’ Fees and Injunctive Relief This court previously ruled that Haines’ 1983 and 1984 directories infringe the copyrights of IBT’s 1982 and 1983 directories. Illinois Bell Telephone Co. v. Haines and Co., 683 F.Supp. at 1210. IBT moves for summary judgment on damages, attorneys’ fees and injunctive relief. Damages An infringer of a copyright is liable for either the copyright owner’s actual damages and any additional profits realized by the infringer, or statutory damages. 17 U.S.C. § 504(a). Under the statute in existence at the time of the infringement, statutory damages were" }, { "docid": "16570050", "title": "", "text": "IBT is a public utility that provides telephone service. IBT is the only source for names, addresses and telephone numbers of residents and businesses in the Chicago area. McDowall Dep. at 54-55, 71-74, 80-81. IBT licenses its directory information primarily to two groups of publishers. One group publishes street address directories, without Yellow Pages advertising. Haines and Donnelley (through AM-DON) are the only two publishers of street address directories in the Chicago area. Melton Dep. at 41; O’Brien Dep. at 24, 28, 41; Haines’ memo, at 19. A second group publishes co-bound directories, or alphabetical directories with Yellow Pages advertising. The markets are distinct; the second group does not compete with the first. Haines’ memo, at 2. Haines publishes cross-reference street address directories under the trademark Criss + Cross. The directories contain a street address and telephone numerical directory. Haines publishes 54 street address directories in major metropolitan areas of the country. Haines’ memo, at 5. It began publishing Chicago-area directories in 1969. Haines and IBT entered into a licensing agreement, renewed each year from 1971 through 1980, whereby IBT provided Haines with pre-publication advance listings from IBT’s Chicago-area directories on a cost per listing basis. IBT allegedly charged Haines the same price per listing as co-bound publishers. Id. at 8. In 1971, Haines paid IBT $.01 per listing. From 1974-81, Haines paid $.0125 per listing. In 1981, IBT raised the price to $.028 per listing. Haines chose not to renew its licensing agreement with IBT in 1982, but continued to utilize IBT's published directories to obtain listing information. IBT also has a contractual relationship to provide listing information to Donnelley, Haines’ only competitor in the Chicago street address directory market. O’Brien Dep. at 24, 38. Donnelley originally obtained listing information from IBT under a directory publishing agreement dated June 26, 1966; the agreement remained in effect through January 1, 1985. Donnelley, Am- eritech-Illinois, and AM-DON Rule 12 statement at ¶ 11. IBT provided customer information to Donnelley, and Donnelley solicited those customers for advertising in the Yellow Pages. The Yellow Pages were then co-bound with IBT’s white page directory." }, { "docid": "16570062", "title": "", "text": "Haines continued to use the IBT directories despite written notices of infringement and demands to stop. In his declaration, McGeorge concedes that Haines’ Chicago area directories “use information appearing in [IBT’s] alphabetical telephone directories.” McGeorge Decl. at 1139. Therefore, the unauthorized use of IBT’s directories has continued beyond infringement of IBT’s 1982 and 1983 directories. The threat of continuing infringement warrants a permanent injunction. See Broadcast Music, Inc. v. Niro’s Palace, Inc., 619 F.Supp. at 963. II. Counter-defendants’ Motion for Summary Judgment on Haines’ Counterclaim Section 1 of the Sherman Act Count III alleges counter-defendants combined and conspired to use the listing information to restrain trade in the Chicago area street address directory mar ket in violation of Section 1 of the Sherman Act. Counterclaim ¶ 22. Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.... ” 15 U.S.C. § 1. To establish a Section 1 claim, Haines must prove (1) a conspiracy in restraint of trade, (2) resulting anticom-petitive effects, and (3) antitrust injury. Richard Hoffman Corp. v. Integrated Bldg. Systems, 610 F.Supp. 19, 22 (N.D.Ill.1985) citing Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554-57 (7th Cir.1980). Allegations of restraint of trade must be supported by significant probative evidence in order to withstand a motion for summary judgment. See First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968). The court applies a rule of reason analysis and weighs all the circumstances of a case to determine whether a practice unreasonably restrains competition. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1283 (7th Cir.1983). Haines claims that counter-defendants entered into various agreements with the purpose and effect of monopolizing, foreclosing and eliminating competition in the street address directory market. Counterclaim M 13, 23. IBT allegedly provides subscriber information and other services to Donnelley under terms more favorable than those offered to Haines. Haines’ memo, at 2. In return, IBT allegedly receives proceeds from" }, { "docid": "16570051", "title": "", "text": "1971 through 1980, whereby IBT provided Haines with pre-publication advance listings from IBT’s Chicago-area directories on a cost per listing basis. IBT allegedly charged Haines the same price per listing as co-bound publishers. Id. at 8. In 1971, Haines paid IBT $.01 per listing. From 1974-81, Haines paid $.0125 per listing. In 1981, IBT raised the price to $.028 per listing. Haines chose not to renew its licensing agreement with IBT in 1982, but continued to utilize IBT's published directories to obtain listing information. IBT also has a contractual relationship to provide listing information to Donnelley, Haines’ only competitor in the Chicago street address directory market. O’Brien Dep. at 24, 38. Donnelley originally obtained listing information from IBT under a directory publishing agreement dated June 26, 1966; the agreement remained in effect through January 1, 1985. Donnelley, Am- eritech-Illinois, and AM-DON Rule 12 statement at ¶ 11. IBT provided customer information to Donnelley, and Donnelley solicited those customers for advertising in the Yellow Pages. The Yellow Pages were then co-bound with IBT’s white page directory. Arden Ex. G at 5. Under a 1971 amendment to the agreement, IBT provided Donnelley with billing and collection services for street address directories. The agreement did not allocate the amounts charged for subscriber information, billing and collection services. Donnelley memo, at 11. The total cost to Donnelley was calculated by a formula that included Don-nelley’s revenues and sales costs. O’Brien Ex. 10 at 4. In July 1984, IBT entered into a ten-year directory agreement with Donnelley, Amer-itech, Ameritech-Illinois and AM-DON. The agreement apparently was approved by the Illinois Commerce Commission. Arden Ex. G (transcript of hearing on IBT’s petition for approval, Aug. 15, 1984). The agreement provides that IBT will furnish all subscriber information, billing and collecting services for directories to be published by AM-DON (a partnership between Donnelley and Ameritech-Illinois) and prepared and marketed by Donnelley. O’Brien Ex. 12; Haines memo, at 19. The agreement sets one charge for all services provided by IBT to AM-DON, rather than a price per listing. For 1985, IBT received $49.5 million; for 1986 through 1994, IBT" }, { "docid": "16570067", "title": "", "text": "substantial amount of interstate commerce; and (4) the existence of specific intent to monopolize. Id. at 540-41. Section 2 offenses require evidence of a specific intent to monopolize. Id. The mere intention to exclude competition and to expand one’s own business is not sufficient to prove a specific intent to monopolize. Id. Specific intent may be inferred from predatory conduct, or conduct that is in itself an independent violation of the antitrust laws or that has no legitimate business justification other than to destroy or damage competition. Id. Counter-defendants argue that Haines has failed to present evidence of a specific intent to monopolize or predatory conduct. To establish predatory conduct, Haines alleges that counter-defendants entered into an agreement whereby Donnelley would obtain listing information at a lower cost than that charged to Haines. Counterclaim 1113(a). The record does not establish that Don-nelley paid less for listing information than Haines. In 1983, IBT billed Haines $55,-155.78 for 1,968,421 listings at .028 cents per listing. In 1984, IBT billed Haines $61,904.27 for 1,996,912 listings at .031 cents per listing. McDowall Decl. at ¡Í ¶ 4-6 and Ex. B and C. Donnelley paid $800,725 for listings, billing and collection services for its 1983 directories. Donnelley paid $914,947 for listings, billing and collection services for its 1984 directories. Id. at ¶ 9. Although Donnelley was not billed on a per listing basis, the amounts charged do not support an inference that Donnelley paid less for IBT listings in 1983 and 1984 than Haines paid for the same listings. Haines’ contention that, under the terms of its agreement with IBT, Donnelley is guaranteed a profit (and therefore pays less for listing information) is not supported by the record. See O’Brien Dep. at 75, 80. Prior to 1985, Donnelley was provided with listings and paid IBT “the difference between Donnelley’s gross revenues and its costs, including a fixed percentage of those revenues.... ” O’Brien Decl. at 115. Under the ten-year agreement executed in July 1984, Donnelley (through AM-DON, its partnership with Ameritech-Illinois) agreed to pay IBT at least $75 million per year. O’Brien Dep., Ex. 12" }, { "docid": "7720238", "title": "", "text": "the signature copies all IBT listings that differed from Haines’ prior listings, including the additional listings. Id. at 29-31. Next, the Haines data entry department logged the red-lined IBT listings into the Haines data system. Id. at 34-35. Haines' proofreaders then compared the data entries to the red-lined listings, checking for inaccuracies. Id. at 39. Each year in which the parties renewed their agreement, IBT billed Haines for every listing contained in IBT’s signature copies and not merely for new or changed listings. McGeorge Dep. at 86; Declaration of Roger McDowall, IBT Directory Manager, 11114, 5 (“McDowall Decl.”). Haines chose not to renew the agreement after 1980. However, Haines utilized IBT’s listings in the same manner both during and after termination of the agreement. McGeorge Dep., pp. 62-63. During the course of the agreement, Haines obtained IBT's listings from the signature copies; subsequently, Haines made its comparisons against IBT’s published directories. Id. at 54, 62-64. IBT’s Claims IBT alleges that ten editions of the Haines directories published in 1983 and 1984 infringe the copyrights of 34 IBT directories. (The pertinent directories of each party cover listings for the greater Chicago metropolitan area.) Specifically, IBT claims that: In preparing and publishing the Haines directories, defendants infringed by copying from the Illinois Bell directories the individual listings contained therein. Complaint, 11 Í2. Further, IBT alleges that numerous fictitious listings which IBT placed in its own directories are replicated in the Haines directories. Complaint, ¶ 11; Exhibit “C.” A list of the registration number of the certificates of registration issued by the Registrar of Copyrights for each relevant IBT directory, and the effective dates of registration, is appended to the complaint as Exhibit A. The certificates of registration comprise Exhibit B. IBT requests both injunctive and monetary relief. Motion to Dismiss Haines initially brings a motion to dismiss, arguing that IBT has not stated a cause of action for copyright infringement because it failed to allege substantial similarity between the infringing directories and IBT’s copyrighted directories. Also, Haines contends that IBT failed to allege copying of protectible facts in its copyrighted directories. The" }, { "docid": "16570052", "title": "", "text": "Arden Ex. G at 5. Under a 1971 amendment to the agreement, IBT provided Donnelley with billing and collection services for street address directories. The agreement did not allocate the amounts charged for subscriber information, billing and collection services. Donnelley memo, at 11. The total cost to Donnelley was calculated by a formula that included Don-nelley’s revenues and sales costs. O’Brien Ex. 10 at 4. In July 1984, IBT entered into a ten-year directory agreement with Donnelley, Amer-itech, Ameritech-Illinois and AM-DON. The agreement apparently was approved by the Illinois Commerce Commission. Arden Ex. G (transcript of hearing on IBT’s petition for approval, Aug. 15, 1984). The agreement provides that IBT will furnish all subscriber information, billing and collecting services for directories to be published by AM-DON (a partnership between Donnelley and Ameritech-Illinois) and prepared and marketed by Donnelley. O’Brien Ex. 12; Haines memo, at 19. The agreement sets one charge for all services provided by IBT to AM-DON, rather than a price per listing. For 1985, IBT received $49.5 million; for 1986 through 1994, IBT receives a minimum of $75 million annually. O’Brien Ex. 12 at 34. The agreement does not restrict IBT’s alternative uses of the listing information during the contract term. Arden Ex. G at 37-38. Haines contends that IBT, Ameritech, Ameritech-Illinois, Donnelley and AM-DON misused IBT’s copyright to restrain trade in violation of Section 1 of the Sherman Act (15 U.S.C. § 1) and conspired to monopolize, attempted to monopolize, and monopolized the market for street address directories in the Chicago area in violation of Section 2 of the Sherman Act (15 U.S.C. § 2). Haines also charges that counter-defendants’ conduct violated the analogous provisions of the Illinois Antitrust Act (Ill. Rev. Stat. ch. 38 ¶ 60-3) and Section 4 of the Clayton Act (15 U.S.C. § 15). DISCUSSION A party is entitled to judgment where the pleadings, depositions, affidavits and other supporting materials show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment is appropriate in antitrust litigation unless" }, { "docid": "7720237", "title": "", "text": "directories contain tables of demographic information, they are not relevant for purposes of this motion because IBT does not identify them as infringing upon IBT’s copyrights. Haines’ Use of IBT’s Directories Haines began publishing Chicago-area directories in 1969. However, IBT objected to Haines’ use of information from IBT’s directories. Declaration of William K. Haines, Sr., 115 (“Haines Decl.”). Therefore, from 1971 through 1980, the parties entered an agreement, renewed each year, for IBT’s provision to Haines of pre-publi-cation advance listings in IBT’s Chicago-area directories at a certain cost per listing. Haines Decl., 11115, 6; Exhibit 1, “License Agreement.” Under the agreement, IBT provided Haines with “signature copies” of its directories received from the printer prior to public distribution. Haines Decl., Exhibit 1, H 3. Haines personnel compared the IBT listings contained in the signature copies with Haines’ listings. Deposition of James A. McGeorge (“McGeorge Dep.”), p. 24. Through this process, Haines identified listings that IBT had added, altered or deleted since its last annual directories. Id. at 25. The Haines staff underlined in red on the signature copies all IBT listings that differed from Haines’ prior listings, including the additional listings. Id. at 29-31. Next, the Haines data entry department logged the red-lined IBT listings into the Haines data system. Id. at 34-35. Haines' proofreaders then compared the data entries to the red-lined listings, checking for inaccuracies. Id. at 39. Each year in which the parties renewed their agreement, IBT billed Haines for every listing contained in IBT’s signature copies and not merely for new or changed listings. McGeorge Dep. at 86; Declaration of Roger McDowall, IBT Directory Manager, 11114, 5 (“McDowall Decl.”). Haines chose not to renew the agreement after 1980. However, Haines utilized IBT’s listings in the same manner both during and after termination of the agreement. McGeorge Dep., pp. 62-63. During the course of the agreement, Haines obtained IBT's listings from the signature copies; subsequently, Haines made its comparisons against IBT’s published directories. Id. at 54, 62-64. IBT’s Claims IBT alleges that ten editions of the Haines directories published in 1983 and 1984 infringe the copyrights of" }, { "docid": "16570071", "title": "", "text": "market-based pricing. IBT/Ameritech’s reply at 6. The evidence reflects that IBT’s rates were well within the range of rates charged for listings by other telephone companies. Id.; Winton Dep. at 79-81. The evidence does not support Haines’ contention that the prices charged under the standard licensing agreement were without legitimate business justification. In addition to the price increases, Haines claims IBT discriminated against Haines by tying the sale of necessary listings to the purchase of unwanted listings. Haines’ memo, at 20. However, the record reflects that IBT provided listing information in the format specified by the publisher and calculated the rate accordingly. See Winton Dep. at 63-68. Lower rates are attributable to limited flexibility in a geographic area. Id. Haines chose the least costly option that did not entitle Haines to isolate specific geographic areas. IBT/Ameri-tech’s memo, at 7; McDowall Deck at ¶ 11. Although co-bound publishers paid IBT only for listings actually used, that billing arrangement was prior to the production of the information on magnetic tape. McDo-wall Dep. at 82. When the information was compiled on magnetic tape in approximately 1982, publishers were billed for everything provided on the tape. Id. at 82, 85. By definition, a tying arrangement requires two separate products. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 477 (7th Cir.1988) (noting the demand for pathological services was not distinctly different from the demand for hospital facilities and services and did not create a separate market). Haines’ contention that listing information useful to Haines and information that it cannot use in its directories constitute two separate products is without merit. Without two products, there can be no illegal tying arrangement. Haines alleges that IBT provided Donnel-ley with delivery and billing services not offered to Haines. Counterclaim 1113(b). There is no evidence that IBT ever provided delivery service to an outside entity. McDowall Deck at ¶ 12. Moreover, according to IBT’s records, Haines never requested billing or delivery services. Id.; IBT/Ameritech’s Rule 12 statement at II3. Haines also argues that IBT’s claimed copyright in the information compiled for street address directories — information in the public" }, { "docid": "16570049", "title": "", "text": "MEMORANDUM OPINION AND ORDER CONLON, District Judge. Plaintiff Illinois Bell Telephone Company (“IBT”) filed this copyright infringement action against defendants Haines and Company, Inc., Haines Criss + Cross Publishers, Inc. (collectively “Haines”), William K. Haines, Sr. and William K. Haines, Jr. Haines filed a counterclaim against IBT, Ameritech Publishing, Inc. (“Ameritech”), Ameritech Publishing of Illinois, Inc. (“Am-eritech-Illinois”), The Reuben H. Donnelley Corporation (“Donnelley”), and AM-DON (collectively “counter-defendants”) alleging violations of Sections 1 and 2 of the Sherman Anti-Trust Act (15 U.S.C. §§ 1 and 2), Section 4 of the Clayton Act (15 U.S.C. § 15), and the Illinois Antitrust Act (Ill. Rev. Stat. ch. 38 ¶¶ 60-3 and 60-7). On April 13, 1988, this court granted IBT's motion for summary judgment, holding that IBT has a valid copyright interest in its telephone directories and that Haines’ 1982 and 1983 directories infringed IBT’s copyrights. Illinois Bell Telephone Company v. Haines, 683 F.Supp. 1204 (N.D.Ill.1988). IBT currently moves for summary judgment on damages, attorneys’ fees and injunctive relief. Counter-defendants move for summary judgment on Haines’ counterclaims. FACTS IBT is a public utility that provides telephone service. IBT is the only source for names, addresses and telephone numbers of residents and businesses in the Chicago area. McDowall Dep. at 54-55, 71-74, 80-81. IBT licenses its directory information primarily to two groups of publishers. One group publishes street address directories, without Yellow Pages advertising. Haines and Donnelley (through AM-DON) are the only two publishers of street address directories in the Chicago area. Melton Dep. at 41; O’Brien Dep. at 24, 28, 41; Haines’ memo, at 19. A second group publishes co-bound directories, or alphabetical directories with Yellow Pages advertising. The markets are distinct; the second group does not compete with the first. Haines’ memo, at 2. Haines publishes cross-reference street address directories under the trademark Criss + Cross. The directories contain a street address and telephone numerical directory. Haines publishes 54 street address directories in major metropolitan areas of the country. Haines’ memo, at 5. It began publishing Chicago-area directories in 1969. Haines and IBT entered into a licensing agreement, renewed each year from" }, { "docid": "16570054", "title": "", "text": "the non-movant presents sufficient evidence to survive a motion for directed verdict. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476 (7th Cir.1988) (the mere existence of a triable issue is no longer sufficient). Fed. R.Civ.P. 56(c) mandates the entry of summary judgment against parties who fail to establish the existence of an essential element of their case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). I. IBT’s Motion for Summary Judgment on Statutory Damages, Attorneys’ Fees and Injunctive Relief This court previously ruled that Haines’ 1983 and 1984 directories infringe the copyrights of IBT’s 1982 and 1983 directories. Illinois Bell Telephone Co. v. Haines and Co., 683 F.Supp. at 1210. IBT moves for summary judgment on damages, attorneys’ fees and injunctive relief. Damages An infringer of a copyright is liable for either the copyright owner’s actual damages and any additional profits realized by the infringer, or statutory damages. 17 U.S.C. § 504(a). Under the statute in existence at the time of the infringement, statutory damages were allocated as follows: (1) Except as provided by clause (2) of this subsection, the copyright owner may elect ... an award of statutory damages ... in a sum of not less than $250 or more than $10,000 as the court considers just ... (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discre tion may increase the award of statutory damages to a sum of not more than $50,000. 17 U.S.C. § 504(c). In a statutory award, the amount of damages is within the court’s discretion. Broadcast Music, Inc. v. Niro’s Palace, Inc., 619 F.Supp. 958, 963 (N.D. Ill.1985). IBT seeks statutory damages for infringement of 34 editions of IBT directories published in 1982 and 1983. IBT’s memo, at 2-3. Haines claims that it used only 14 editions of IBT’s directories per year (or 28 directories) as references for Haines’ 1983 and 1984 directories. Haines memo, at 2. Appendix A to the October 1981 license agreement between IBT" }, { "docid": "7720236", "title": "", "text": "follows United States Post Office rather than IBT abbreviations for street designations such as “avenue,” “street,” “boulevard,” etc. McGeorge Dep. at 108, 111, 130; McGeorge Decl., ¶ 18. Second, Haines divides the IBT listings into the categories of residential or non-residential. This determination is made pursuant to the subjective judgment of the Haines staff, based upon training provided by Haines. McGeorge Dep. at 37-38. For example, Haines would designate an address at a downtown office building as a business listing. Id. Third, some of the IBT listings are duplicates, appearing in both the IBT city and suburban directories. Haines uses only one such listing and does not repeat the duplication. Id. at 115-116. Fourth, every Haines directory approximately encompasses the listings contained in one to five of the IBT directories because of differences in the geographic compilation of the respective directories. Id; McGeorge Decl., ¶ 33. Fifth, unlike the IBT directories, the Haines directories include over 300,000 listings of addresses without names and/or telephone numbers. McGeorge Dep. at 97-98; McGeorge Decl., 1128. Although the Haines directories contain tables of demographic information, they are not relevant for purposes of this motion because IBT does not identify them as infringing upon IBT’s copyrights. Haines’ Use of IBT’s Directories Haines began publishing Chicago-area directories in 1969. However, IBT objected to Haines’ use of information from IBT’s directories. Declaration of William K. Haines, Sr., 115 (“Haines Decl.”). Therefore, from 1971 through 1980, the parties entered an agreement, renewed each year, for IBT’s provision to Haines of pre-publi-cation advance listings in IBT’s Chicago-area directories at a certain cost per listing. Haines Decl., 11115, 6; Exhibit 1, “License Agreement.” Under the agreement, IBT provided Haines with “signature copies” of its directories received from the printer prior to public distribution. Haines Decl., Exhibit 1, H 3. Haines personnel compared the IBT listings contained in the signature copies with Haines’ listings. Deposition of James A. McGeorge (“McGeorge Dep.”), p. 24. Through this process, Haines identified listings that IBT had added, altered or deleted since its last annual directories. Id. at 25. The Haines staff underlined in red on" }, { "docid": "16570056", "title": "", "text": "and Haines, as well as correspondence from IBT in 1982 and 1983, lists 14 regional directories provided to and used by Haines. See McDo-wall Dec., Ex. B. IBT calculates lost revenues for 1983 and 1984 by quantifying listings for 14 regions. Id., Ex. C. Although three directories are published twice annually, IBT’s records indicate that Haines was billed once per year for these regions. Haines maintains that it used only one edition of each directory per year. McGeorge Decl. at ¶ 2. There is no evidence that Haines infringed the additional publication each year. Therefore, IBT is entitled to statutory damages for infringement of 14 directories for both 1983 and 1984, or for 28 acts of infringement. To determine the amount of statutory damages for copyright infringement, the court considers the willfulness of defendant’s conduct and the deterrent value of the sanction imposed. International Korwin Corp. v. Kowalczyk, 665 F.Supp. 652, aff'd, 855 F.2d 375 (N.D. Ill.1987). “Willful” means acting with knowledge that one’s conduct constitutes an infringement. See 3 Nimmer § 14.04[B][3] at 14-28. Proof of actual knowledge of the infringement is not necessary; reckless disregard for the copyright holder’s rights may establish knowledge of the infringement. See id. at 380 n. 10. IBT claims Haines willfully infringed its copyright. Haines paid for the listing information for almost ten years before it elected not to renew the license agreement. Haines continued to use IBT’s published directories despite correspondence from IBT in April 1983 and June 1984, demanding restitution and ordering Haines to cease using the listings. McDowall Deck at Ex. C, F. Haines maintains it did not willfully infringe because it acted under a good faith belief that its conduct did not constitute infringement. Haines’ memo, at 12. Haines argues that licenses previously were not required to publish telephone company listings in street address directories, and that copyright law concerning the protecting of compilations is unsettled. Id. at 12-14. Haines allegedly elected to enter into the license agreement with IBT to obtain pre-publication information. The license agreement between IBT and Haines does not contain a provision that binds Haines" }, { "docid": "16570070", "title": "", "text": "IBT under a standard licensing agreement. IBT/Ameritech’s reply at 4. There is no evidence to suggest that Haines ever sought the services or contract terms IBT provides counter-defendants, for which counter-defendants pay IBT $75 million annually. Haines argues that its costs ultimately are greater because, unlike co-bound directory publishers, Haines cannot simply reproduce the listings but must conduct extensive independent research, editing, verification, correction and rearrangement of information. Haines’ memo, at 7. IBT does not dictate the format of the directories that publishers produce. IBT/Ameri-tech’s reply at 4. The record reflects that had Haines requested, IBT would have provided the listings in a different format and charged Haines for the service. McDowall Dep. at 47, 48, 53. Haines contends that IBT unreasonably raised its rates for co-bound directory publishers. Between 1981 and 1987, IBT allegedly increased its rates 2400% for residential listings and 3600% for business listings. W.K. Haines Decl. at 11 2; Hill Deck at 11 6. IBT explains that the 1986 price increase was the result of IBT’s conversion from cost-based pricing to market-based pricing. IBT/Ameritech’s reply at 6. The evidence reflects that IBT’s rates were well within the range of rates charged for listings by other telephone companies. Id.; Winton Dep. at 79-81. The evidence does not support Haines’ contention that the prices charged under the standard licensing agreement were without legitimate business justification. In addition to the price increases, Haines claims IBT discriminated against Haines by tying the sale of necessary listings to the purchase of unwanted listings. Haines’ memo, at 20. However, the record reflects that IBT provided listing information in the format specified by the publisher and calculated the rate accordingly. See Winton Dep. at 63-68. Lower rates are attributable to limited flexibility in a geographic area. Id. Haines chose the least costly option that did not entitle Haines to isolate specific geographic areas. IBT/Ameri-tech’s memo, at 7; McDowall Deck at ¶ 11. Although co-bound publishers paid IBT only for listings actually used, that billing arrangement was prior to the production of the information on magnetic tape. McDo-wall Dep. at 82. When the information" }, { "docid": "16570072", "title": "", "text": "was compiled on magnetic tape in approximately 1982, publishers were billed for everything provided on the tape. Id. at 82, 85. By definition, a tying arrangement requires two separate products. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 477 (7th Cir.1988) (noting the demand for pathological services was not distinctly different from the demand for hospital facilities and services and did not create a separate market). Haines’ contention that listing information useful to Haines and information that it cannot use in its directories constitute two separate products is without merit. Without two products, there can be no illegal tying arrangement. Haines alleges that IBT provided Donnel-ley with delivery and billing services not offered to Haines. Counterclaim 1113(b). There is no evidence that IBT ever provided delivery service to an outside entity. McDowall Deck at ¶ 12. Moreover, according to IBT’s records, Haines never requested billing or delivery services. Id.; IBT/Ameritech’s Rule 12 statement at II3. Haines also argues that IBT’s claimed copyright in the information compiled for street address directories — information in the public domain — constitutes predatory conduct. Counterclaim II 13(c). A good faith attempt to protect a copyright interest, even if unsuccessful, is a defense to an action for attempted monopolization. Toro Co. v. R. & R. Products Co., 600 F.Supp. 400, 401 (D. Minn.1984), aff'd, 787 F.2d 1208 (8th Cir.1986). This court previously ruled that IBT has a valid copyright for its 1982 and 1983 directories. Illinois Bell Telephone Company v. Haines & Co., 683 F.Supp. 1204 (N.D. Ill.1988). Therefore, the filing of the underlying copyright action does not constitute predatory conduct. Haines proffers no evidence to show counter-defendants specifically intended to control prices or destroy competition. Haines also fails to raise a genuine issue of fact that counter-defendants engaged in predatory conduct. Therefore, counter-defendants are entitled to judgment as a matter of law on Haines’ claims asserted under Section 2 of the Sherman Act. Because the counterclaim and supporting evidence fail to raise issues of fact that counter-defendants violated Sections 1 and 2 of the Sherman Act, the evidence does not support Haines’ claims under" }, { "docid": "16570073", "title": "", "text": "domain — constitutes predatory conduct. Counterclaim II 13(c). A good faith attempt to protect a copyright interest, even if unsuccessful, is a defense to an action for attempted monopolization. Toro Co. v. R. & R. Products Co., 600 F.Supp. 400, 401 (D. Minn.1984), aff'd, 787 F.2d 1208 (8th Cir.1986). This court previously ruled that IBT has a valid copyright for its 1982 and 1983 directories. Illinois Bell Telephone Company v. Haines & Co., 683 F.Supp. 1204 (N.D. Ill.1988). Therefore, the filing of the underlying copyright action does not constitute predatory conduct. Haines proffers no evidence to show counter-defendants specifically intended to control prices or destroy competition. Haines also fails to raise a genuine issue of fact that counter-defendants engaged in predatory conduct. Therefore, counter-defendants are entitled to judgment as a matter of law on Haines’ claims asserted under Section 2 of the Sherman Act. Because the counterclaim and supporting evidence fail to raise issues of fact that counter-defendants violated Sections 1 and 2 of the Sherman Act, the evidence does not support Haines’ claims under the Illinois Antitrust Act (Ill.Rev.Stat. ch. 38 1111 60-3, 60-7). See Marrese v. Am. Academy Ortho. Surgeons, 726 F.2d 1150, 1155 (7th Cir.1984), rev’d on other grounds, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) (the same standard is used to determine liability under both federal and state antitrust law). Similarly, the evidence proffered does not support a claim under Section 4 of the Clayton Act, which provides a right of action for persons injured by violation of the antitrust laws. 15 U.S.C. § 15. Counter-defendants’ motion for summary judgment on the counterclaim is granted. CONCLUSION IBT’s motion for summary judgment on damages, attorneys’ fees and injunctive relief is granted with respect to 28 infringements in 1983 and 1984. Haines is ordered to pay IBT statutory damages in the amount of $231,000. IBT is directed to submit a petition for reasonable costs and attorneys’ fees incurred in prosecuting this action by May 31, 1989; Haines may file any objections by June 20, 1989. Haines is permanently enjoined from using IBT’s directories or listing" } ]

[ { "docid": "8617646", "title": "", "text": "that Chestnutt Corporation breached its fiduciary duty to AIF in securing the expense ratio increase and made false and misleading statements in the proxy materials to obtain shareholder approval of the revamped advisory agreement, in violation of 15 U.S.C. § 80a-20(a) and Rule 14a-9, 17 C.F.R. § 240.14a-9 (1976). II. Congress, in imposing a fiduciary obligation on investment advisers, plainly intended that their conduct be governed by the traditional rule of undivided loyalty implicit in the fiduciary bond. It is axiomatic, therefore, that a self-dealing fiduciary owes a duty of full disclosure to the beneficiary of his trust. Former Chief Judge Friendly stated the principle succinctly: under the scheme of the Investment Company Act an investment adviser is “under a duty of full disclosure of information to . . . unaffiliated directors in every area where there was even a possible conflict of interest between their interests and the interests of the fund” — a situation which occurs much more frequently in the relations between a mutual fund and its investment adviser than in ordinary business corporations Fogel v. Chestnutt, 533 F.2d 731, 745 (2d Cir. 1975), cert. denied, -U.S. -, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976), (citing Moses v. Burgin, 445 F.2d 369, 376 (1st Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 532, 30 L.Ed.2d 547 (1971)). Moreover, even where a fiduciary has made full disclosure, it is the duty of a federal court to subject the transaction to rigorous scrutiny for fairness. See Pepper v. Litton, 308 U.S. 295, 306-07, 60 S.Ct. 238, 84 L.Ed. 281 (1939). We believe it is clear that, in applying these standards, Chestnutt’s conduct in obtaining approval of the contract modification must be found to have fallen far short of the elevated norm Congress expected. A thorough search of the record reveals no evidence that Chestnutt, in discussing the issue with the AIF directors, made any reference to the fact or even suggested that the Fund would lose a rebate if the expense ratio were raised to 1V2% of average monthly net assets. And, although the financial soundness of the investment" } ]

[ { "docid": "23140305", "title": "", "text": "96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)); Acito v. IMCERA Group, 47 F.3d 47, 52 (2d Cir.1995). Put another way, “[a] fact is to be considered material if there is a substantial likelihood that a reasonable person would consider it impor tant in deciding whether to buy or sell shares [of stock].” Azrielli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994). Local 649 contends that the defendants misrepresented the services that CTB performed because investors were not told: (1) that CTB would limit its role to operating a small call center; (2) that First Data would, in practice, provide the vast majority of transfer agent services; or (3) that First Data would charge only a fraction of the fees that would be drained from the Funds. Further, in the Fund prospectuses, defendants categorized the fees that CAM pocketed as “other fees,” when in fact, they were far more akin to “management fees” a category that, under SEC rules, was required to be separately stated. We agree with Local 649 that CAM’s misrepresentations were material. A substantial likelihood exists that a reasonable investor would view them as significant alterations of the “total mix” of information made available. Basic Inc., 485 U.S. at 232, 108 S.Ct. 978. First and foremost, what the Fund investors could not divine from the disclosures was that they were at the mercy of a faithless fiduciary. As the Supreme Court has admonished: “[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.” Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (quoting Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 93, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (observing “the potential conflicts of interest inherent in” mutual fund arrangements)). For a comprehensive analysis of this problem, see David F. Swensen, Unconventional Success: A Fundamental Approach to Personal Investing 220-269 (2005). CAM, acting through investment adviser Smith Barney, owed a duty of “uncompromising fidelity” and “undivided loyalty” to the Funds’ shareholders. Galfand v. Chestnutt Corp., 545 F.2d 807, 809-11 (1976); see also Daily Income Fund," }, { "docid": "2014879", "title": "", "text": "that Lessler’s section 36(b) claim fell within this exception and thus failed to state a claim. Report at 9-10. Because he found that Lessler had no claims under section 17(a)(2) and 36(b), the magistrate also recommended dismissing Lessler’s claims under sections 47(b) and 48(a), which the magistrate described as “purely remedial” provisions not creating substantive rights. Report at 10-12. The magistrate recommended dismissing Lessler’s 1934 Act claim on the basis of Rule 9(b) of the Federal Rules of Civil Procedure, which requires that allegations of fraud be “stated with particularity.” Relying on three opinions of this court, the magistrate described Lessler’s section 10(b) and 14(a) allegations as insufficient and “totally in conclusional form.” Report at 14-15 (citing Hayduk v. Lanna, 775 F.2d 441 (1st Cir.1985); Wayne Investment, Inc. v. Gulf Oil Corp., 739 F.2d 11 (1st Cir.1984); McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (1st Cir.1980)). Finally, the magistrate recommended that Lessler’s state law claims be dismissed as well because Lessler’s failure adequately to state any claim under federal law deprived the court of a basis for asserting pendent federal jurisdiction. Report at 16-17. On November 19, 1987, the district court accepted the magistrate’s report and recommendation in its entirety and entered judgment dismissing Lessler’s complaint on the merits. II. INVESTMENT COMPANY ACT CLAIMS As the Supreme Court has noted, “[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.” Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 1838, 60 L.Ed.2d 404 (1979) (quoting Galfand v. Chestnutt Corp., 545 F.2d 807, 808 (2d Cir.1976)). “[A] typical fund is organized by its investment adviser which provides it with almost all management services.... [A] mutual fund cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm’s-length bargaining do not work in the mutual fund industry in the same manner as they do in other sectors of the American economy.” Id. (quoting S.Rep. No. 184, 91st Cong, at 5 (1969)). In enacting the Investment Company Act of 1940, Congress was aware of this potential conflict of interest and was" }, { "docid": "16388063", "title": "", "text": "80a-35(b), on behalf of all the funds within the complex. Finally, the complaint alleges that defendant, by reason of its receipt of funds from invalid advisory agreements, has breached its fiduciary duty to negotiate at arm’s-length with the funds in the complex. See 15 U.S.C. § 80a-35(b). Accordingly, plaintiff seeks judgment: (1) declaring that defendant violated Sections 10(a), 15(c) and 36(b) of the ICA, and that the advisory agreements are void; (2) awarding damages against defendant, including the return of all fees paid to it by each of the funds as well as related relief; and (3) providing any other relief deemed just and proper by the Court. As is apparent, the crux of all charges in the complaint is that the seven supposedly independent directors are not truly independent, but actually controlled by defendant. DISCUSSION A. The ICA and the mutual fund industry The Investment Company Act of 1940 was enacted by Congress to regulate in vestment companies that operate mutual funds. Kamen v. Kemper Financial Services, Inc. (1991) 500 U.S. 90, 93, 111 S.Ct. 1711, 114 L.Ed.2d 152. Unlike other corporations, investment companies are typically created and managed by pre-existing entities known as investment advisers. Daily Income Fund, Inc. v. Fox (1984) 464 U.S. 523, 536, 104 S.Ct. 831, 78 L.Ed.2d 645. “Because the adviser generally supervises the daily operation of the fund and often selects affiliated persons to serve on the company’s board of directors, the relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.” Id. (internal quotation omitted). Mindful of those potential conflicts, Congress crafted a regulatory scheme in the ICA that placed quantitative and qualitative limits on the relations between advisers and investment companies. Subsequent to the Act’s passage, investment companies enjoyed enormous growth, prompting studies on the Act’s effectiveness in protecting the interests of investors. Daily Income, 464 U.S. at 537, 104 S.Ct. 831. The SEC, having sponsored or authored several such studies, concluded that the Act did not prevent advisers from receiving extraordinary compensation from mutual funds relative to moneys received from other clients. Id. The SEC also" }, { "docid": "12164247", "title": "", "text": "important factors. The special relationship between an investment company, often referred to as a mutual fund, and its investment manager counsels reasonable stockholders of the investment company to examine with great care any matter relevant to the stability, integrity, and skill of a proposed investment manager. The fund is a shell, a pool of assets consisting of securities, belonging to the shareholders of the fund. The fund is usually organized by the manager. The manager selects the fund’s investments and-operates its business, providing expertise, personnel, and office space. • The manager dominates the fund; the latter is not free to terminate the relationship. As the Supreme Court noted in Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 1838, 60 L.Ed.2d 404 (1979): “Since a typical fund is organized by its investment adviser which provides it with almost all management services . .., a mutual fund cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm’s-length bargaining do not work in the mutual fund industry in the same manner as they do in other sectors of the American economy.” S.Rep.No.91-184, p. 5 (1969). As a consequence, “[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest,” Galfand v. Chestnutt Corp., 545 F.2d 807, 808 (CA2 1976). Indeed, it was Congress’ concern “about the potential for abuse inherent in the structure of investment companies,” id. at 480, that led to the enactment of the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. “Since the advisory contract represents a delegation of a substantial part of the functions of the board of an investment company and the adviser usually controls the company ...” 2 Frankel, The Regulation of Money Managers, 212-13 (1978), the 1940 Act specifically requires approval of the investment advisory contract by a vote of the shareholders of the investment company, 15 U.S.C. §§ 80a-15(a) and (c). The provisions of the 1940 Act clearly reflect the judgment of Congress that stockholders of the investment company have a substantial interest in evaluating the new owners of an" }, { "docid": "20167582", "title": "", "text": "question.” RCM Secs. Fund, Inc. v. Stanton, 928 F.2d 1318, 1330 (2d Cir.1991). It does not “‘abridge, ‘ enlarge or modify any substantive right.’ ” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 95, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (quoting 28 U.S.C. § 2072(b)). The underlying demand requirement, by contrast, “in delimiting the respective powers of the individual shareholder and of the directors to control corporate litigation[,] clearly is a matter of ‘substance,’ not ‘procedure.’ ” Id. at 96-97, 111 S.Ct. 1711 (citing Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 543-44 & n. 2, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984) (Stevens, J., concurring in judgment)). It is therefore governed by state law. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 549 F.3d 137, 141-42 (2d Cir.2008) (“[Fjederal courts ... apply state substantive law and federal procedural law .... to any issue or claim which has its source in state law.” (internal quotation marks omitted)), cert. denied, — U.S. -, 129 S.Ct. 2160, 173 L.Ed.2d 1155 (2009). III. Massachusetts Substantive Requirements Even where an underlying cause of action is based on the ICA, as Claim Two is, whether the action is properly classified as derivative or direct is ordinarily determined by state law. See, e.g., Strougo v. Bassini, 282 F.3d 162, 169 (2d Cir.2002) (“We must fill a gap in the ICA with rules borrowed from state law unless ... application of those rules would frustrate the specific federal policy objectives underlying the ICA.”); id. at 176 (“The expectations of private parties that state law will govern their corporate disputes is even higher when the federal statute invoked does not on its face provide notice to the parties of a possibility of a federal private suit and thereby suggest that federal law may be applied.”); see also Burks v. Lasker, 441 U.S. 471, 478, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (“Congress has never indicated that the entire corpus of state corporation law is to be replaced simply because a plaintiffs cause of action is based upon a federal statute.”); Lapidus v. Hecht," }, { "docid": "10636105", "title": "", "text": "(i.e., the corporations) and that all of the injuries alleged by Plaintiffs are indirect and thus require derivative action. Plaintiffs rely on two Supreme Court decisions, Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), and Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984), to argue that § 36(b) claims must be brought directly. Plaintiffs point to various prospectuses and SAIs that indicate, under the Funds’ fee structures, the fees investors will pay (Pis.’ Mem. Opp’n Mot. Dismiss 44). Plaintiffs also argue that the rates paid by the various classes of fund shares differ and that individual stockholders falling within the various classes of fund shares are thus “directly, rather than indirectly, impacted by such payments” (id. at 45). Finally, Plaintiffs further maintain that if the claims are maintained derivatively, recovery will go to the Funds creating a windfall for current shareholders but depriving former investors of any recovery at all (id. at 46). In Kemper and Daily Income Fund, the Supreme the Court addressed the application of Rule 23.1 to ICA claims and determined whether plaintiffs had to first make a demand upon the board of directors prior to bringing an action under the Act. i. Daily Income Fund, Inc. v. Fox The question before the Supreme Court in Daily Income Fund, Inc. v. Fox was “whether Rule 23.1 of the [Federal Rules of Civil Procedure] requires that an investment company security holder first make a demand upon the company’s board of directors before bringing an action under § 36(b) of the [ICA] to recover allegedly excessive fees paid by the company to its investment adviser.” 464 U.S. at 524,104 S.Ct. 831. In that case, the plaintiff alleged excessive fees on the ground that, although investment decisions remained routine and substantially unchanged, the Fund fees had remained constant (at a rate of one-half of one percent) notwithstanding a growth in net assets from $75 million to $775 million. Id. at 525, 104 S.Ct. 831. In this instance, the complaint sought damages in favor of" }, { "docid": "8233788", "title": "", "text": "Ameriprise, “[a]n inadequate [negotiation] that produces an objectively reasonable fee self-evidently cannot form the basis for liability [under § 36(b) ].” In effect, Ameriprise contends that an adviser cannot be liable for a breach of fiduciary duty as long as its fees are roughly in line with industry norms. II. Several unique features of the mutual fund industry have made it the focus of congressional regulation. See Burks v. Lasker, 441 U.S. 471, 480-81, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979). Although mutual funds are technically owned by the individual shareholders who invest in the funds, most mutual funds are created, organized, and managed by external investment advisers-an arrangement that gives the adviser a significant amount of control over the fund it serves. Id. at 481, 99 S.Ct. 1831. Investment advisers are compensated for their administrative service and investment advice through agreements that they negotiate with their respective funds. In the nascent stages of a fund’s development, the adviser often has the ability to influence who will sit on the fund’s board of directors, though this power is limited by federal securities regulations on director independence. See William A. Birdthistle, Compensating Power: An Analysis of Rents and Rewards in the Mutual Fund Industry, 80 Tul. L.Rev. 1401, 1422 (2006); Burks, 441 U.S. at 482-83, 99 S.Ct. 1831 (explaining the responsibilities of disinterested directors). Experts have extensively debated the extent to which these industry characteristics interfere with robust competition and drive up fees. Some studies have concluded that inherent conflicts of interest and a lack of meaningful competition between mutual funds have led to systematic overpricing of investment advice. See, e.g., Birdthistle, supra; John P. Freeman, Stewart L. Brown & Steve Pomer-antz, Mutual Fund Advisory Fees: New Evidence and a Fair Fiduciary Duty Test, 61 Okla. L.Rev. 83 (2008); John P. Freeman & Stewart L. Brown, Mutual Fund Advisory Fees: The Cost of Conflicts of Interest, 26 Iowa J. Corp. L. 609 (2001); Donald C. Langevoort, Private Litigation to Enforce Fiduciary Duties in Mutual Funds: Derivative Suits, Disinterested Directors and the Ideology of Investor Sovereignty, 83 Wash. U. L.Q. 1017 (2005);" }, { "docid": "23140307", "title": "", "text": "Inc. v. Fox, 464 U.S. 523, 535 n. 11, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984). Any rational mutual fund investor would be highly leery of dealing with a fiduciary such as CAM and its affiliates who, in violation of the law, lined their pockets at the expense of investors whose interests they were obligated to protect. The district court’s analysis did not engage this reality. Under the circumstances alleged in the complaint, the defendants had an obligation to negotiate the best possible arrangement for the Funds. In addition, they were obligated to disclose candidly to shareholders the material features of the arrangements they crafted. See generally Overton v. Todman & Co., 478 F.3d 479, 485 (2d Cir.2007). These obligations required the defendants to make clear to both the Board and the Funds’ shareholders that CAM was assuming nearly the full benefit of the discounts generated by First Data. We conclude that the facts that shareholders were being grossly overcharged for transfer agent services and that CAM was reaping the benefits were ones that would have “been viewed by the reasonable investor as having significantly altered the total mix of information made available.” TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126. The SEC’s disclosure rules support this analysis. In connection with the distribution of securities, a mutual fund is required to file with the SEC a registration statement and prospectus containing fee tables summarizing the expenses deducted from fund assets. See 15 U.S.C. §§ 80a-8, 80a-24, 80a-29; Form N-1A Registration Form for Open-end Management Investment Companies (2007), General Instructions to Item 3, http://www.sec.gov/about/ forms/formn-la.pdf (last visited Jan. 5, 2010). The prospectus is considered by the SEC to be the “most complete source of information about a fund” and serves as “a fund’s primary disclosure document.” Registration Form Used by Open-End Management Investment Companies Securities Act, 63 Fed.Reg. 13,916, at 13,917-18 (Mar. 23, 1998). For example, in the context of a typical open-end mutual fund, SEC Regulations require that the prospectus contain only “information that is necessary for an average or typical investor to make an investment decision,” and “focus" }, { "docid": "22755658", "title": "", "text": "Justice Marshall delivered the opinion of the Court. This case calls upon us to determine whether we should fashion a federal common law rule obliging the representative shareholder in a derivative action founded on the Investment Company Act of 1940, 54 Stat. 789, 15 U. S. C. § 80a-l(a) et seq., to make a demand on the board of directors even when such a demand would be excused as futile under state law. Because the scope of the demand requirement embodies the incorporating State’s allocation of governing powers within the corporation, and because a futility exception to demand does not impede the purposes of the Investment Company Act, we decline to displace state law with a uniform rule abolishing the futility exception in federal derivative actions. 1 — 1 The Investment Company Act of 1940 (ICA or Act) establishes a scheme designed to regulate one aspect of the management of investment companies that provide so-called “mutual fund” services. Mutual funds pool the investment assets of individual shareholders. Such funds typically are organized and underwritten by the same firm that serves as the company’s “investment adviser.” The ICA seeks to arrest the potential conflicts of interest inherent in such an arrangement. See generally Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 536-541 (1984); Burks v. Lasker, 441 U. S. 471, 480-481 (1979). The Act requires, inter alia, that at least 40% of the investment company’s directors be financially independent of the investment adviser, 15 U. S. C. §§80a-10(a), 80a — 2(a)(19)(iii); that the contract between the adviser and the company be approved by a majority of the company’s shareholders, §80a-15(a); and that the dealings of the adviser with the company measure up to a fiduciary standard, the breach of which gives rise to a cause of action by either the Securities and Exchange Commission (SEC) or an individual shareholder on the company’s behalf, § 80a-35(b). Petitioner brought this suit to enforce § 20(a) of the Act, 15 U. S. C. § 80a-20(a), which prohibits materially misleading proxy statements. The complaint was styled as a share holder derivative action brought" }, { "docid": "23140306", "title": "", "text": "material. A substantial likelihood exists that a reasonable investor would view them as significant alterations of the “total mix” of information made available. Basic Inc., 485 U.S. at 232, 108 S.Ct. 978. First and foremost, what the Fund investors could not divine from the disclosures was that they were at the mercy of a faithless fiduciary. As the Supreme Court has admonished: “[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.” Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (quoting Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 93, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (observing “the potential conflicts of interest inherent in” mutual fund arrangements)). For a comprehensive analysis of this problem, see David F. Swensen, Unconventional Success: A Fundamental Approach to Personal Investing 220-269 (2005). CAM, acting through investment adviser Smith Barney, owed a duty of “uncompromising fidelity” and “undivided loyalty” to the Funds’ shareholders. Galfand v. Chestnutt Corp., 545 F.2d 807, 809-11 (1976); see also Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 535 n. 11, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984). Any rational mutual fund investor would be highly leery of dealing with a fiduciary such as CAM and its affiliates who, in violation of the law, lined their pockets at the expense of investors whose interests they were obligated to protect. The district court’s analysis did not engage this reality. Under the circumstances alleged in the complaint, the defendants had an obligation to negotiate the best possible arrangement for the Funds. In addition, they were obligated to disclose candidly to shareholders the material features of the arrangements they crafted. See generally Overton v. Todman & Co., 478 F.3d 479, 485 (2d Cir.2007). These obligations required the defendants to make clear to both the Board and the Funds’ shareholders that CAM was assuming nearly the full benefit of the discounts generated by First Data. We conclude that the facts that shareholders were being grossly overcharged for transfer agent services and that CAM was reaping the benefits were ones that would" }, { "docid": "19740596", "title": "", "text": "the relevant time period for recovering damages under § 36(b). In response, Plaintiffs argue that the Derivative Complaint fully satisfies the pleading requirements for a § 36(b) claim. Because the Court finds that Plaintiffs fail to state a claim under § 36(b), Count One is dismissed with prejudice. Congress enacted the ICA in 1940 to address “its concern with ‘the potential for abuse inherent in the structure of investment companies.’ ” Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984). Because a mutual fund is usually created and managed by an organization known as an investment advisor, and the investment advisor normally supervises the daily operation of the fund and selects affiliated persons to serve on the company’s board of directors, Congress realized that “the relationship between investment advisors and mutual funds is fraught with potential conflicts of interest.” Id. To minimize the impact of such conflicts, Congress promulgated a statutory scheme that regulates the transactions between a fund and its advisors, limits the inter-relationship between the board of directors and the fund’s advisors, and requires agreements for investment advice to be reduced to a written contract and approved by the directors and shareholders of the fund. Id. at 536-537, 104 S.Ct. 831 (citations omitted). After these initial measures proved insufficient in regulating fee arrangements for investment advice, Congress amended the ICA in 1970 to strengthen the judicial oversight of such arrangements. Id. at 539, 104 S.Ct. 831. In amending the ICA, Congress imposed a “fiduciary duty” on investment advisors and their affiliates and permitted either the Securities Exchange Commission or a shareholder to commence an action on the grounds that the mutual fund’s fees constitute a “breach of fiduciary duty.” Id. (citations omitted). This fiduciary duty was codified in § 36(b) of the ICA. In its present incarnation, § 36(b) provides: An action may be brought under this subsection ... by a security holder of such registered investment company on behalf of such company, against such investment advisor, or any affiliated person of such investment adviser ... for breach of fiduciary" }, { "docid": "9817238", "title": "", "text": "consultant. Instead, it is “more often than not also the creator, sponsor, and promoter of the mutual fund.” Charles E. Rounds, Jr. & Charles E. Rounds, III, Loring and Rounds: A Trustee’s Handbook 955-56 (2012 ed.); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 93, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (Mutual funds “typically are organized and underwritten by the same firm that serves as the company’s ‘investment adviser.’ ”); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984) (Mutual funds are “typically created and managed by a pre-existing external organization known as an investment adviser.” (citing Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979))). Thus, while “[i]n theory, the [trust] is able to choose any adviser it deems appropriate to invest the fund’s portfolio, based on the adviser’s investing style, track record and fees,” in practice, the investment adviser picked to manage the portfolio is most often self-selected and unlikely to be removed. John Shipman, So Who Owns Your Mutual Fund?, Wall St. J., May 5, 2003, at Rl, available at http://online.wsj. eom/news/articles/SB105207969873142900. Because “a typical fund is organized by its investment adviser which provides it with almost all management services ..., a mutual fund cannot, as a practical matter sever its relationship with the adviser.” Burks, 441 U.S. at 481, 99 S.Ct. 1831 (quoting S.Rep. No. 91-184, at 5 (1969), reprinted in 1970 U.S.C.C.A.N. 4897, 4901). Consistent with this description of the structure of a mutual fund and its relationship with its investment adviser, the Schwab Trust selected Charles Schwab Investment Management, Inc. (“Schwab Ad-visor”) as its investment adviser. Indeed, Charles R. Schwab is alleged to have been chairman and trustee of the Schwab Trust and a member of the board of the Schwab Advisor. Third Am. Compl. ¶ 38. The latter is a subsidiary of the Charles Schwab Corporation, of which Mr. Schwab has served as “CEO at various times, including from 2004 through October 2008.” Third Am. Compl. ¶ 36. Moreover, the complaint alleges that all “[defendants and" }, { "docid": "10636111", "title": "", "text": "behalf.”). Thus, the Court indicated that the shareholder could bring the § 36(b) claim directly. Id. at 535, n. 11, 104 S.Ct. 831. Most importantly, the Court stated that all the recovery should go to the Fund rather than to plaintiffs. Id. The end result of Fox appears to be that, under § 36(b), a claimant brings a “direct” suit in name only and a “derivative” one with respect to the recovery of any damages. ii. Kamen v. Kemper Financial Services, Inc. In Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), the Court considered whether it “should fashion a federal common law rule obliging the representative shareholder in a derivative action founded on the [ICA] to make a demand on the board of directors even when such a demand would be excused as futile under state law.” Id. at 92, 111 S.Ct. 1711. The plaintiff in this case brought the action under § 20(a) of the Act, which prohibits materially misleading proxy statements. Unlike Fox, the Court expressly distinguished between the issue of whether a party has standing to bring an action under § 20(a) versus the capacity in which such a party must bring the action. Id. at 97 n. 4, 111 S.Ct. 1711. The Court, however, declined to reach this issue. Id. The Court spoke to the manner in which a § 36(b) claim can be brought and stated that a plaintiff could bring the claim without making a pre-complaint demand. The Court explained as follows: [Respondent] ... ignores the role that the ICA clearly envisions for shareholders in protecting investment companies from conflicts of interest. As we have pointed out, § 36(b) of the ICA expressly provides that an individual shareholder may bring an action on behalf of the investment company for breach of the investment adviser’s fiduciary duty. Congress added § 36(b) to the ICA in 1970 because it concluded that the shareholders should not have to “rely solely on the fund’s directors to assure reasonable adviser fees, notwithstanding the increased disinterestedness of the board.” Daily Income Fund," }, { "docid": "22755659", "title": "", "text": "the same firm that serves as the company’s “investment adviser.” The ICA seeks to arrest the potential conflicts of interest inherent in such an arrangement. See generally Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 536-541 (1984); Burks v. Lasker, 441 U. S. 471, 480-481 (1979). The Act requires, inter alia, that at least 40% of the investment company’s directors be financially independent of the investment adviser, 15 U. S. C. §§80a-10(a), 80a — 2(a)(19)(iii); that the contract between the adviser and the company be approved by a majority of the company’s shareholders, §80a-15(a); and that the dealings of the adviser with the company measure up to a fiduciary standard, the breach of which gives rise to a cause of action by either the Securities and Exchange Commission (SEC) or an individual shareholder on the company’s behalf, § 80a-35(b). Petitioner brought this suit to enforce § 20(a) of the Act, 15 U. S. C. § 80a-20(a), which prohibits materially misleading proxy statements. The complaint was styled as a share holder derivative action brought on behalf of respondent Cash Equivalent Fund, Inc. (Fund), a registered investment company, against Kemper Financial Services, Inc. (KFS), the Fund’s investment adviser. Petitioner alleged that KFS obtained shareholder approval of the investment-adviser contract by causing the Fund to issue a proxy statement that materially misrepresented the character of KFS’ fees. See App. to Pet. for Cert. 90a-91a. Petitioner also averred that she made no precomplaint demand on the Fund’s board of directors because doing so would have been futile. In support of this allegation, the complaint stated that all of the directors were under the control of KFS, that the board had voted unanimously to approve the offending proxy statement, and that the board had subsequently evidenced its hostility to petitioner’s claim by moving to dismiss. See id., at 92a-93a. The District Court granted KFS’ motion to dismiss on the ground that petitioner had failed to plead the facts excusing demand with sufficient particularity for purposes of Federal Rule of Civil Procedure 23.1. See 659 F. Supp. 1153, 1160-1163 (ND Ill. 1987). The Court" }, { "docid": "8233787", "title": "", "text": "should have a reply, though it may or may not be convincing.” Id. at 616. To address the Board’s concerns, Ameri-prise produced a report entitled the San Diego Office Review, which compared the fee structures of mutual funds and institutional accounts. The veracity and completeness of that report is an important part of this dispute. The plaintiffs’ experts claim that the report omitted or obfuscated information to make the fee discrepancy seem smaller and more justifiable than it really was. According to one of the plaintiffs’ experts, “the Board did not notice the distortions, relied on the misrepresentations, and erroneously concluded exactly what the Investment Advisor mislead [sic] them into concluding: that the fees for the [mutual fund] and institutional accounts were ‘in line.’ ” Id. at 1492. The plaintiffs suggest that the Board might not have ratified the fee agreement had it been given accurate information. Although Am-eriprise objects to the plaintiffs’ characterization of the report as inaccurate and misleading, its main argument is that the contents of the report were irrelevant. According to Ameriprise, “[a]n inadequate [negotiation] that produces an objectively reasonable fee self-evidently cannot form the basis for liability [under § 36(b) ].” In effect, Ameriprise contends that an adviser cannot be liable for a breach of fiduciary duty as long as its fees are roughly in line with industry norms. II. Several unique features of the mutual fund industry have made it the focus of congressional regulation. See Burks v. Lasker, 441 U.S. 471, 480-81, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979). Although mutual funds are technically owned by the individual shareholders who invest in the funds, most mutual funds are created, organized, and managed by external investment advisers-an arrangement that gives the adviser a significant amount of control over the fund it serves. Id. at 481, 99 S.Ct. 1831. Investment advisers are compensated for their administrative service and investment advice through agreements that they negotiate with their respective funds. In the nascent stages of a fund’s development, the adviser often has the ability to influence who will sit on the fund’s board of directors, though" }, { "docid": "22180788", "title": "", "text": "v. Ash, 422 U. S. 66, 78 (1975). In this case, consideration of each of these factors plainly demonstrates that Congress intended the unique right created by § 36(b) to be enforced solely by the SEC and security holders of the investment company. As we have previously noted, Congress adopted the ICA because of its concern with “the potential for abuse inherent in the structure of investment companies.” Burks v. Lasker, 441 U. S. 471, 480 (1979). Unlike most corporations, an investment company is typically created and managed by a pre-existing external organization known as an investment adviser. Id., at 481. Because the adviser generally supervises the daily operation of the fund and often selects affiliated persons to serve on the company’s board of directors, the “‘relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.’” Ibid., quoting Golf and v. Chestnutt Corp., 545 F. 2d 807, 808 (CA2 1976). In order to minimize such conflicts of interest, Congress established a scheme that regulates most transactions between investment companies and their advisers, 15 U. S. C. § 80a-17 (1982 ed.); limits the number of persons affiliated with the adviser who may serve on the fund’s board of directors, § 80a-10; and requires that fees for invest ment advice and other services be governed by a written contract approved both by the directors and the shareholders of the fund, § 80a-15. In the years following passage of the Act, investment companies enjoyed enormous growth, prompting a number of studies of the effectiveness of the Act in protecting investors. One such report, commissioned by the SEC, found that investment advisers often charged mutual funds higher fees than those charged the advisers’ other clients and further determined that the structure of the industry, even as regulated by the Act, had proved resistant to efforts to moderate adviser compensation. Wharton School Study of Mutual Funds, H. R. Rep. No. 2274, 87th Cong., 2d Sess., 28-30, 34, 66-67 (1962). Specifically, the study concluded that the unaffiliated directors mandated by the Act were “of restricted value as an instrument for providing effective" }, { "docid": "16388064", "title": "", "text": "S.Ct. 1711, 114 L.Ed.2d 152. Unlike other corporations, investment companies are typically created and managed by pre-existing entities known as investment advisers. Daily Income Fund, Inc. v. Fox (1984) 464 U.S. 523, 536, 104 S.Ct. 831, 78 L.Ed.2d 645. “Because the adviser generally supervises the daily operation of the fund and often selects affiliated persons to serve on the company’s board of directors, the relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.” Id. (internal quotation omitted). Mindful of those potential conflicts, Congress crafted a regulatory scheme in the ICA that placed quantitative and qualitative limits on the relations between advisers and investment companies. Subsequent to the Act’s passage, investment companies enjoyed enormous growth, prompting studies on the Act’s effectiveness in protecting the interests of investors. Daily Income, 464 U.S. at 537, 104 S.Ct. 831. The SEC, having sponsored or authored several such studies, concluded that the Act did not prevent advisers from receiving extraordinary compensation from mutual funds relative to moneys received from other clients. Id. The SEC also concluded that unaffiliated directors were “of restricted value as an instrument for providing effective representation of mutual fund shareholders in dealings between the fund and its investment adviser.” Id. (quoting Wharton School Study of Mutual Funds (1962), H.R.Rep. No. 2274, 87th Cong., 2d Sess., at 34). These realities prompted Congress to take further action. In response to legislative proposals submitted by the SEC, the ICA was amended in 1970. Among the amendments was 15 U.S.C. § 80a-10(a), which sought to make the outside directors of investment companies more independent from advisers. Id. at 538, 104 S.Ct. 831. Congress rejected an SEC proposal which would have required advisers to accept only “reasonable” fees; it opted instead to impose a fiduciary duty on advisers. Id. at 538-39, 104 S.Ct. 831. Neither Congress (which amended the ICA in 1970) nor the SEC (which often asserts its views regarding the susceptibility of outside directors to the influence of advisers) has taken any action proscribing the use of interlocking boards within mutual fund complexes. In 1994, the SEC amended the" }, { "docid": "10636104", "title": "", "text": "of the ICA on two grounds: for failure to bring the claim derivatively and for failure to state a claim for relief. The Holder Subclass brings this claim against Investment Adviser Defendants. Section 36(b) provides that investment advisers and persons affiliated with the investment advisers have a fiduciary duty with respect to the receipt of compensation for services and of payments of a material nature made by a registered investment company or shareholder investors. 15 U.S.C. § 80a-35(b). The Complaint alleges violations of § 36(b) based on: improper Rule 12b-l marketing fees, undisclosed soft dollar payments, and excessive commissions (Comply 289). The Complaint charges that these violations resulted in injuries to the Proprietary Funds and the Class of “millions of dollars in damages” (id. ¶ 391). The Court addresses each ground for dismissal in turn. a. Failure to Bring Claim Derivatively Defendants move to dismiss Claim Ten for failure to have brought the § 36(b) claim derivatively. Defendants argue that shareholders may not sue individually to recover damages for injuries to the individual Proprietary Funds (i.e., the corporations) and that all of the injuries alleged by Plaintiffs are indirect and thus require derivative action. Plaintiffs rely on two Supreme Court decisions, Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), and Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984), to argue that § 36(b) claims must be brought directly. Plaintiffs point to various prospectuses and SAIs that indicate, under the Funds’ fee structures, the fees investors will pay (Pis.’ Mem. Opp’n Mot. Dismiss 44). Plaintiffs also argue that the rates paid by the various classes of fund shares differ and that individual stockholders falling within the various classes of fund shares are thus “directly, rather than indirectly, impacted by such payments” (id. at 45). Finally, Plaintiffs further maintain that if the claims are maintained derivatively, recovery will go to the Funds creating a windfall for current shareholders but depriving former investors of any recovery at all (id. at 46). In Kemper and Daily Income Fund," }, { "docid": "9817237", "title": "", "text": "like them and agrees to pool certain of their assets in a common fund to be managed by T. A, B, C, and the other investors each receive tradable shares in the fund in an amount proportional to their investment. By structuring their collective investment in this way, A, B, C, and the others are able to take advantage of economies of scale, obtain professional portfolio management, and achieve a more diversified portfolio than each could have individually. In managing the portfolio, T is subject to a fiduciary obligation to A, B, C, and the other investors in the fund. Dukeminier, Sitkoff & Lindgren, Wills, Trusts, and Estates 556. This simple description does not adequately discuss perhaps the most important party to this arrangement, namely, the investment adviser, whose “main role is to supervise and manage the fund’s assets, including handling the fund’s portfolio transactions.” Clifford E. Kirsch, An Introduction to Mutual Funds, in Mutual Fund Regulation § 1:2.2 (Clifford E. Kirsch ed., 2d ed.2005). The investment adviser is not a mere employee, contractor, or consultant. Instead, it is “more often than not also the creator, sponsor, and promoter of the mutual fund.” Charles E. Rounds, Jr. & Charles E. Rounds, III, Loring and Rounds: A Trustee’s Handbook 955-56 (2012 ed.); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 93, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (Mutual funds “typically are organized and underwritten by the same firm that serves as the company’s ‘investment adviser.’ ”); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984) (Mutual funds are “typically created and managed by a pre-existing external organization known as an investment adviser.” (citing Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979))). Thus, while “[i]n theory, the [trust] is able to choose any adviser it deems appropriate to invest the fund’s portfolio, based on the adviser’s investing style, track record and fees,” in practice, the investment adviser picked to manage the portfolio is most often self-selected and unlikely to be removed. John Shipman, So" }, { "docid": "2014880", "title": "", "text": "a basis for asserting pendent federal jurisdiction. Report at 16-17. On November 19, 1987, the district court accepted the magistrate’s report and recommendation in its entirety and entered judgment dismissing Lessler’s complaint on the merits. II. INVESTMENT COMPANY ACT CLAIMS As the Supreme Court has noted, “[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest.” Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 1838, 60 L.Ed.2d 404 (1979) (quoting Galfand v. Chestnutt Corp., 545 F.2d 807, 808 (2d Cir.1976)). “[A] typical fund is organized by its investment adviser which provides it with almost all management services.... [A] mutual fund cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm’s-length bargaining do not work in the mutual fund industry in the same manner as they do in other sectors of the American economy.” Id. (quoting S.Rep. No. 184, 91st Cong, at 5 (1969)). In enacting the Investment Company Act of 1940, Congress was aware of this potential conflict of interest and was also concerned by “reports of ‘fantastic abuse of trust by investment company management and wholesale victimizing of security holders.’ ” United States v. Smolar, 557 F.2d 13, 20 (1st Cir.) (quoting United States v. Deutsch, 451 F.2d 98, 108 (2d Cir.1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 682, 30 L.Ed.2d 667 (1972)), cert. denied, 434 U.S. 866, 966, 971, 98 S.Ct. 203, 508, 523, 54 L.Ed.2d 143, 453, 461 (1977). The Act was “designed primarily to correct [such] abuses of self-dealing which had produced injury to stockholders of investment companies.” Id. The regulatory scheme embodied in the Investment Company Act scheme carefully controls the relationship between investment advisers and investment companies. It limits the number of persons affiliated with the adviser who may serve on the investment company’s board of directors, 15 U.S.C. § 80a-10, it requires that fees for investment advice and other services be governed by a written contract approved both by the directors and the shareholders of the investment company, 15 U.S.C. § 80a-15, and it strictly regulates most transactions between" } ]

[ { "docid": "3280434", "title": "", "text": "of law. In short, it was not held that either § 6 of the act or the arbitration provisions thereof were in and of themselves unconstitutional, but merely, in effect, that when the arbitration demanded by the taxpayer became inoperative through no default on his part, he could not in consequence be lawfully subjected to the previous assessment made without notice and hearing. Manifestly this decision has no application to the present case, where the provisions for arbitration did not thus become inoperative, but McGregor declined to avail himself of the arbi-' tration to which' the act entitled him, and the assessment that had been made by the Board of Assessors was thus rendered final and conclusive not by the force of the act itself but by hig own deliberate default. Having thus failed to avail-himself of the hearing, granted by the act he was properly held by the Supreme Court of Georgia to have no'just ground, of complaint, Where a city charter gives property owners an opportunity to be heard before a board of assessors with respect to the justice and .validity of local assessments for proposed public improvements and empowers the board to determine • such complaints before the assessments are made, parties who do not avail themselves of such opportunity cannot thereafter be heard to complain of such assessments as unconstitutional. Farncomb v. Denver, supra, p. 11; cited with approval in Milheim v. Improvement District, 262 U. S. 710, 724, in reference to an analogous situation. The judgment of the Supreme Court of Georgia is accordingly Affirmed. The greater part of .this section is set forth in the margin of the opinion in Turner v. Wade, supra, at p. 66. Except so. far as the same may be affected by the findings and orders of the State Tax Commissioner, who is authorized by § 13 of the act to adjust and equalize the tax valuations of various classes of property as made in the several counties of the State." } ]

[ { "docid": "22388652", "title": "", "text": "provide for a full and thorough canvassing of the multitudinous and intricate factors which compose the problem of the taxing freedom of the States and the needed limits on such state taxing power. Congressional, committees can make studies and give the claims of the individual States adequate hearing before the ultimate legislative formulation of policy is made by the representatives of all the States. The solution to these problems ought not to rest on the self-serving determination of the States of what they are entitled to out of the Nation’s resources. Congress alone can formulate policies founded upon economic realities, perhaps to be applied to the myriad situation involved by a properly constituted and duly informed administrative agency. The West case was a per curiam affirmance without opinion. The Court cited four cases in support: United States Glue Co. v. Town of Oak Creek, 247 U. S. 321; Interstate Busses Corp. v. Blodgett, 276 U. S. 245; Memphis Natural Gas Co. v. Beeler, 315 U. S. 649, 656; International Shoe Co. v. Washington, 326 U. S. 310. Not one of these cases presented the issue now here; in none had the Court to sustain a state net income tax on a business whose revenue derived solely from interstate commerce. In United States Glue Co. v. Town of Oak Creek, supra, this Court upheld an apportioned net income tax levied by the State of Wisconsin on a Wisconsin corporation having its principal office and manufacturing establishment in that State. A substantial part of the corporation’s business was intrastate. The only issue before the Court was the power of the State to include interstate income in its apportionment computation. Interstate Busses Corp. v. Blodgett, supra, decided that appellant had not sustained the burden of showing that an excise tax of one cent per mile levied by Connecticut on motor vehicles using its highways in interstate commerce fell with discriminating weight on interstate commerce when the tax was viewed as part of the State’s entire taxing scheme. Aside from this issue of discrimination, the ease was merely another instance of a State charging" }, { "docid": "3215633", "title": "", "text": "Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. Ed. 990; Ex parte Public Nat. Bank, 278 U. S. 101, 49 S. Ct. 43, 73 L. Ed. 202; Connecting Gas Co. v. Imes (D. C.) 11 F.(2d) 191; Connor v. Board of Commissioners (D. C.) 12 F.(2d) 789. And a mere assessment is not an order within the purview of the statute. Gully v. Interstate Nat. Gas Co., 292 U. S. 16, 54 S. Ct. 565, 78 L. Ed. 1088. The trial judge .was empowered to act upon the motion, and he correctly denied it. Coming to the merits of the case, an appeal to the county court within ten days from the action of the county treasurer upon a proposal to list and assess property omitted from the tax rolls is'expressly authorized by section 12346, Oklahoma Statutes 1931. Such an appeal is administrative as distinguished from judicial. For that reason it must be exhausted before resort can be had to equity. Plaintiff cannot discard that unexhausted administrative remedy and submit its grievance to a court of equity. This court has so declared upon facts bearing essential similarity to those presented here. Ex parte State of Oklahoma, 37 F.(2d) 862; Rounds & Porter Lumber Co. v. Livesay, 65 F.(2d) 298. See, also, Kansas City Southern Ry. Co. v. Cornish (C. C. A.) 65 F.(2d) 671; Farncomb v. City and County of Denver, 252 U. S. 7, 40 S. Ct. 271, 64 L. Ed. 424; Milheim v. Moffat Tunnel Imp. Dist., 262 U. S. 710, 43 S. Ct. 694, 67 L. Ed. 1194; First National Bank v. Board of Com’rs of Weld County, 264 U. S. 450, 44 S. Ct. 385, 68 L. Ed. 784; Gorham Mfg. Co. v. State Tax Commission, 266 U. S. 265, 45 S. Ct. 80, 69 L. Ed. 279; Porter v. Investors’ Syndicate, 286 U. S. 461, 52 S. Ct. 617, 76 L. Ed. 1226; Utley v. City of St. Petersburg, 292 U. S. 106, 54 S. Ct. 593, 78 L. Ed. 1155. It is provided by section 12660 of the Statutes" }, { "docid": "22825446", "title": "", "text": "this plaintiff against the County Assessor, involving the same tax for 1913, and presenting the same questions here involved, sustained the refusal of a lower court to enjoin the collection of the tax, and held: (a) That the flat increase made by the Tax Commission was in strict conformity with the state statutes; (b) That this action being approved by the State Board of Equalization constituted a final assessment; (c) That under the statute the plaintiff was bound to know the authority of these taxing agencies in the premises and that they were required to meet at certain places, on certain days, and complete their labors within designated dates; and (d) “With full knowledge of the respective powers of these several boards to make corrections in assessments and adjustments in equalization, essential to bring about a complete and equitable assessment of all property within the state, it remained inactive until long after the tax was laid, when it applied for an abatement or rebate of the tax. The aforesaid tribunals were open to plaintiff in error prior to the laying of the tax, but it refrained from seeking relief therein, and may not now complain.” First National Bank v. Patterson, 65 Colo. 166, 172-173. The effect of this is to hold that an administrative remedy was in fact open to plaintiff under the statutes of the State, and by this construction, upon well settled principles, we are bound. McGregor v. Hogan, 263 U. S. 234; Farncomb v. Denver, 252 U. S. 7, 10; Londoner v. Denver, 210 U. S. 373, 374; Price v. Illinois, 238 U. S. 446, 451; Western Union Tel. Co. v. Gottlieb, 190 U. S. 412, 425. Plaintiff seeks to excuse its failure to apply to the County Board for an equalization by saying that this was a public duty of the Board and not a private remedy; and Greene v. Louisville & I. R. R. Co., 244 U. S. 499, 521, is relied upon as authority. The most cursory examination of that case, however, will disclose its inapplicability. There the divergent assessments were made by two" }, { "docid": "22319768", "title": "", "text": "“principle of comity” which demanded respect for state tax administration, extended precisely as far as was necessary to ensure that the federal courts not become party to the abuse of their equity power. Congress intended that federal authority be exercised with the same restraint that the States applied in the administration of their own tax system, and thus to restore the parity between the two judicial systems. But there is absolutely no support in either the cases of this Court, or in Congress' action, for total abdication of federal power in this field. It is thus entirely clear that as a jurisdictional matter, the federal courts have jurisdiction over claims seeking monetary relief arising from unconstitutional state taxation. > t-H Petitioners argue that since their federal claim is brought pursuant to 42 U. S. C. § 1983, it was not necessary to exhaust administrative remedies before commencing this action. In First National Bank of Greeley v. Board of Commissioners of Weld County, 264 U. S. 450 (1924), we held that before a litigant complaining of alleged overassessment of taxes may bring a damages action grounded on the Constitution or statutes of the United States, that litigant must fully exhaust any administrative remedies afforded by the State. In Weld County, plaintiff in error brought its action under federal question jurisdiction to recover the amount of taxes levied for the years 1913 and 1914. It alleged that the taxes were assessed and collected in contravention of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and a federal statute setting forth certain limitations on state and local taxation in regard to national banks. The Court paused before addressing plaintiff in error’s substantive claim: “We are met at the threshold of our consideration of the case with the contention that the plaintiff did not exhaust its remedies before the administrative boards and consequently cannot be heard by a judicial tribunal to assert the invalidity of the tax.” Id., at 453. Because the plaintiff in error had not exhausted its state administrative remedies, the Court declined to consider the “question whether the" }, { "docid": "22825447", "title": "", "text": "error prior to the laying of the tax, but it refrained from seeking relief therein, and may not now complain.” First National Bank v. Patterson, 65 Colo. 166, 172-173. The effect of this is to hold that an administrative remedy was in fact open to plaintiff under the statutes of the State, and by this construction, upon well settled principles, we are bound. McGregor v. Hogan, 263 U. S. 234; Farncomb v. Denver, 252 U. S. 7, 10; Londoner v. Denver, 210 U. S. 373, 374; Price v. Illinois, 238 U. S. 446, 451; Western Union Tel. Co. v. Gottlieb, 190 U. S. 412, 425. Plaintiff seeks to excuse its failure to apply to the County Board for an equalization by saying that this was a public duty of the Board and not a private remedy; and Greene v. Louisville & I. R. R. Co., 244 U. S. 499, 521, is relied upon as authority. The most cursory examination of that case, however, will disclose its inapplicability. There the divergent assessments were made by two assessing boards, neither having control or supervision of the other; and it was held that complainants, whose property had been assessed by one of these boards, were not entitled, under the Kentucky statutes, to complain to the other board that its assessments were too low. A very different question is presented here, where the same board has affirmed both assessments, is expressly vested by statute with the power of equalization and may exert its power at the instance of anyone aggrieved. Hallett v. County Commissioners, 27 Colo. 86, 93; Barnett v. Jaynes, 26 Colo. 279, 282. It is urged further that it would have been futile to seek a hearing before the State Tax Commission because, first, no appeal to a judicial tribunal was provided in the event of a rejection of a taxpayer’s complaint; and, second, because the time at the disposal of the Commission for hearing individual complaints was inadequate. But, aside from the fact that such an appeal is not a matter of right, but wholly dependent upon statute, 2 Cooley on" }, { "docid": "23425706", "title": "", "text": "of companies \"results solely from differences between the nature of their businesses, not from the location of their activities.” Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S. 66, 78 (1989). We find no authority for the different proposition advanced here that a tax that does discriminate against foreign commerce may be upheld if a taxpayer could avoid that discrimination by changing the domicile of the corporations through which it conducts its business. Our cases suggest the contrary. See Westinghouse Electric Corp. v. Tully, 466 U. S. 388, 406 (1984); Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 72 (1963). Repeating the argument that prevailed in the Iowa Supreme Court, Iowa next insists that its tax system does not violate the Commerce Clause because it does not favor local interests. To the extent corporations do business in Iowa, an apportioned share of their entire corporate income is subject to Iowa tax. In the case of a foreign subsidiary doing business abroad, Iowa would tax the dividends paid to the domestic parent, but would not tax the subsidiary’s earnings. Summarizing this analysis, Iowa asserts: “More earnings of the domestic subsidiary, which has income producing activities in Iowa, than earnings of the foreign subsidiary, which has no Iowa activities, are included in the preapportioned net income base for the unitary business as a whole.” Brief for Respondent 19. Far from favoring local commerce, Iowa argues, the tax system places additional burdens on Iowa businesses. We agree that the statute does not treat Iowa subsidiaries more favorably than subsidiaries located elsewhere. We are not persuaded, however, that such favoritism is an essential element of a violation of the Foreign Commerce Clause. In Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979), we concluded that the constitutional prohibition against state taxation of foreign commerce is broader than the protection afforded to interstate commerce, id., at 445-446, in part because matters of concern to the entire Nation are implicated, id., at 448-451. Like the Import-Export Clause, the Foreign Commerce Clause recognizes" }, { "docid": "22874002", "title": "", "text": "state the account and compute the tax thereon. § 219a. If within one year after, the account is audited and stated the corporation files an application for revision, “ the commission shall grant a hearing thereon and if it shall be made to appear upon any such hearing by evidence submitted to it or otherwise, that any such account included taxes or other charges which could not have been lawfully demanded, or that payment has been illegally . . . exacted of any such account, the commission shall resettle the same according to law and the facts, and adjust the account for taxes accordingly.’’ § 218. The determination of the Commission upon any application for revision may be reviewed, both upon the law and the facts, upon certiorari by the Supreme Court, on all the evidence, papers and proceedings before the Commission, and, if found erroneous or illegal, the account shall be corrected and restated; and from any determination by the Supreme Court an appeal may be taken to the Court of Appeals. §§ 199, 219. The Gorham Company is a Rhode Island corporation, engaged, under its charter, in the business of manufacturing and selling silverware, bronze and metal ware. All of its manufacturing is done in Rhode Island. It has there its main office and sells its ware to customers in all the States of the Union and some foreign countries. It also has a branch office and showrooms in New York City, where it keeps on hand a stock of its ware, partly samples, makes sales to customers from such stock and takes orders for ware to be shipped from the Rhode Island factory. In 1917, however, it also engaged extensively in the manufacture and sale of munitions. No part of this \"business was carried on in New York. The Company, in 1918, made a report to the Commission in compliance with the Tax Law. In this report, both as originally filed and later amended, it stated that the business which it transacted was “ manufacturing and selling silverware, bronze and metal ware”; gave the amount of its" }, { "docid": "22874006", "title": "", "text": "a tax upon the income earned without the State by a foreign corporation engaged principally in interstate commerce, is a direct burden upon such commerce. We are of the opinion, however, that, without reference to these constitutional questions, the bill was properly dismissed by the District Court because of the failure of the Company to avail itself of the administrative remedy provided by the statute for the revision and correction of the tax. A taxpayer who does not exhaust the remedy provided before an administrative board to secure the correct as sessment of a tax, cannot thereafter be heard by a judicial tribunal to assert its invalidity. Farncomb v. Denver, 252 U. S. 7, 10; Milheim v. Moffat Tunnel District, 262 U. S. 710, 723; McGregor v. Hogan, 263 U. S. 234, 238; First National Bank v. Weld County, 264 U. S. 450, 455. The Company did not report to the Commission any of the facts upon which it now challenges the validity of the tax. Its report indicated that its net income was derived solely from carrying on in New York and elsewhere the unitary business of manufacturing and selling ware. After the account had been audited and the tax computed, it was entitled, as a matter of right, to make application for a revision of the tax and to a hearing before the Commission, at which it might submit evidence; and if it appeared that the account included taxes which could not have been lawfully demanded, the Commission was required to resettle the same “according to law and the facts ”, and adjust the tax accordingly. The Company, however, made no application to the Commission for a revision of the tax; it submitted no evidence to the Commission as to any of the matters on which it now relies, either as to the inclusion of profits derived from the munitions business or otherwise; and it did not request the Commission to resettle the tax on the ground of any error or invalidity, in matter either of fact or law. Under these circumstances we think that the Company, having" }, { "docid": "22388620", "title": "", "text": "which inherently or by the usages of commerce is embraced in exportation or any of its processes. ... At most, exportation is affected only indirectly and remotely.” Id., at 174 — 175. The first case in this Court applying the doctrine to interstate commerce was that of U. S. Glue Co. v. Town of Oak Creek, 247 U. S. 321 (1918). There the Court distinguished between an invalid direct levy which placed a burden on interstate commerce and a charge by way of net income derived from profits from interstate commerce. This landmark case and those usually cited as upholding the doctrine there announced, i. e., Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920), and Memphis Gas Co. v. Beeler, 315 U. S. 649 (1942), dealt with corporations which were domestic to the taxing State (U. S. Glue Co. v. Town of Oak Creek, supra), or which had “established a commercial domicile” there, Underwood Typewriter Co. v. Chamberlain, supra; Memphis Gas Co. v. Beeler, supra. But that the presence of such a circumstance is not controlling is shown by the cases of Bass, Ratcliff & Gret-ton, Ltd., v. State Tax Commission, 266 U. S. 271 (1924), and Norfolk & W. R. Co. v. North Carolina, 297 U. S. 682 (1936). In neither of these cases was the taxpayer a domiciliary of the taxing State, incorporated or with its principal place of business there, though each carried on substantial local activities. Permitting the assessment of New York’s franchise tax measured on a proportional formula against a British corporation selling ale in New York State, the Court held in Bass, Ratcliff & Gretton, Ltd., supra, that “the Company carried on the unitary business .of manufacturing and selling ale, in which its profits were earned by a series of transactions beginning with the manufacture in England and ending in sales in New York and other places — the process of manufacturing resulting in no profits until it ends in sales — the State was justified in attributing to New York a just proportion of the profits earned by the Company from" }, { "docid": "3215634", "title": "", "text": "its grievance to a court of equity. This court has so declared upon facts bearing essential similarity to those presented here. Ex parte State of Oklahoma, 37 F.(2d) 862; Rounds & Porter Lumber Co. v. Livesay, 65 F.(2d) 298. See, also, Kansas City Southern Ry. Co. v. Cornish (C. C. A.) 65 F.(2d) 671; Farncomb v. City and County of Denver, 252 U. S. 7, 40 S. Ct. 271, 64 L. Ed. 424; Milheim v. Moffat Tunnel Imp. Dist., 262 U. S. 710, 43 S. Ct. 694, 67 L. Ed. 1194; First National Bank v. Board of Com’rs of Weld County, 264 U. S. 450, 44 S. Ct. 385, 68 L. Ed. 784; Gorham Mfg. Co. v. State Tax Commission, 266 U. S. 265, 45 S. Ct. 80, 69 L. Ed. 279; Porter v. Investors’ Syndicate, 286 U. S. 461, 52 S. Ct. 617, 76 L. Ed. 1226; Utley v. City of St. Petersburg, 292 U. S. 106, 54 S. Ct. 593, 78 L. Ed. 1155. It is provided by section 12660 of the Statutes that an aggrieved taxpayer may appeal from an assessment made by the assessor to the county board of equalization, and, in case of adverse action by. that tribunal, he may appeal to the Supreme Court of the state. Section 12661, as amended by section 8, chapter 115, Session Laws 1933, provides for a like appeal from the state board of equalization to the Supreme Court. The amended act provides in express terms that the appeal shall be administrative rather than judicial. Despite earlier expressions indicating a contrary view, the Supreme Court of the state decided quite recently that its action in a ease thus appealed is judicial, not administrative. In re Assessment of Kansas City Southern Ry. Co. (Okl. Sup.) 33 P.(2d) 772: Whether in view of that pronouncement it will be determined at a future time that an appeal from the county court to the Supreme Court authorized by section 12348 is judicial, and, if so, whether that remedy is ex-elusive of resort to equity, are abstract questions not necessary to consider, because the" }, { "docid": "22874001", "title": "", "text": "amount thereof as returned to the United States is subject to any correction for fraud, evasion or errors, ascertained by the Commission. § 214. If the entire business of the corporation is not transacted within the State, the tax is to be based upon the portion of such ascertained net income determined by the proportion which the aggregate value of specified classes of the assets of the corporation within the State bears to the aggregate value of all of such classes of assets wherever located. § 214. The corporation shall make the Commission a report showing the State of its organization “ and the kind of business transacted ”; the amount of its net income for the preceding year as returned to the United States, and, if inaccurate, the amount claimed to be its net income; the value of the specified classes of its assets, within the State and wherever located; and such other facts as the Commission may require for the purpose of making the computation required. § 211. The Commission shall audit and state the account and compute the tax thereon. § 219a. If within one year after, the account is audited and stated the corporation files an application for revision, “ the commission shall grant a hearing thereon and if it shall be made to appear upon any such hearing by evidence submitted to it or otherwise, that any such account included taxes or other charges which could not have been lawfully demanded, or that payment has been illegally . . . exacted of any such account, the commission shall resettle the same according to law and the facts, and adjust the account for taxes accordingly.’’ § 218. The determination of the Commission upon any application for revision may be reviewed, both upon the law and the facts, upon certiorari by the Supreme Court, on all the evidence, papers and proceedings before the Commission, and, if found erroneous or illegal, the account shall be corrected and restated; and from any determination by the Supreme Court an appeal may be taken to the Court of Appeals. §§ 199," }, { "docid": "22233178", "title": "", "text": "of fact. The Supreme Court of Missouri held, on appeal, that relief from the alleged discriminatory assessment could not be had in any suit at law; that this bill in equity was the appropriate and only remedy, unless relief could have been had by timely application to some administrative board; and that neither of the boards of equalization was charged with the power and duty to grant such relief. But, without passing definitely upon the question of discrimination, it concluded that if the plaintiff had “ at any time before the tax books were delivered to the collector, filed complaint before the State Tax Commission, that body, in the proper exercise of its jurisdiction, would have granted a hearing, and would have heard evidence with respect to the valuations complained of, and, if the charges contained in the complaint had been found to be true, the valuations placed on its property would have been lowered, or that on other property raised, the property omitted from the assessment roll would have been placed thereon, and the discrimination complained of thereby removed. The remedy provided by the statute is adequate, certain, and complete.” Compare First National Bank of Greeley v. Weld County, 264 U. S. 450. The court held, therefore, that, because plaintiff had this ade quate legal remedy, it was not entitled to equitable relief, and because plaintiff had not complained to the Tax Commission, “ it was clearly guilty of laches in not so doing.” On these grounds, the Supreme Court affirmed the judgment of the trial court. 323 Mo. 180. The powers and duties of the State Tax Commission are prescribed by Article 4 of Chapter 119 of the Revised Statutes of 1919. Six years before this- suit was begun, those provisions had been construed by the Supreme Court of Missouri in Laclede Land & Improvement Co. v. State Tax Commission, 296 Mo. 298. There, the court had been required to determine whether the Commission had power to grant relief of the character here sought. The Commission had refused, on the ground of lack of power, an application for" }, { "docid": "22874003", "title": "", "text": "219. The Gorham Company is a Rhode Island corporation, engaged, under its charter, in the business of manufacturing and selling silverware, bronze and metal ware. All of its manufacturing is done in Rhode Island. It has there its main office and sells its ware to customers in all the States of the Union and some foreign countries. It also has a branch office and showrooms in New York City, where it keeps on hand a stock of its ware, partly samples, makes sales to customers from such stock and takes orders for ware to be shipped from the Rhode Island factory. In 1917, however, it also engaged extensively in the manufacture and sale of munitions. No part of this \"business was carried on in New York. The Company, in 1918, made a report to the Commission in compliance with the Tax Law. In this report, both as originally filed and later amended, it stated that the business which it transacted was “ manufacturing and selling silverware, bronze and metal ware”; gave the amount of its net income for the year 1917 as determined by the United States, claiming only one deduction therefrom, namely, the amount paid for federal income taxes, and stated the aggregate values of the classes of its assets specified in the Tax Law, both in New York and wherever located. It did not, however, show that it was also engaged in manufacturing and selling munitions, that its net income as reported was derived to any extent from that business, or that it did not manufacture any ware in New York. The Commission thereupon audited and stated the Company’s account, and computed the tax thereon, of which it gave the Company notice. The Company, how ever, did not apply to the Commission for a revision of the account and resettlement of the tax, but, within less than one year after the account had been audited and stated, brought this suit in the federal court to enjoin the collection of the tax. The Company insists that the inclusion in the net income upon which the tax was based of" }, { "docid": "22233179", "title": "", "text": "discrimination complained of thereby removed. The remedy provided by the statute is adequate, certain, and complete.” Compare First National Bank of Greeley v. Weld County, 264 U. S. 450. The court held, therefore, that, because plaintiff had this ade quate legal remedy, it was not entitled to equitable relief, and because plaintiff had not complained to the Tax Commission, “ it was clearly guilty of laches in not so doing.” On these grounds, the Supreme Court affirmed the judgment of the trial court. 323 Mo. 180. The powers and duties of the State Tax Commission are prescribed by Article 4 of Chapter 119 of the Revised Statutes of 1919. Six years before this- suit was begun, those provisions had been construed by the Supreme Court of Missouri in Laclede Land & Improvement Co. v. State Tax Commission, 296 Mo. 298. There, the court had been required to determine whether the Commission had power to grant relief of the character here sought. The Commission had refused, on the ground of lack of power, an application for relief from discrimination similar to that here alleged. The Laclede Company petitioned for a mandamus to compel the Commission to hear its complaint. The Supreme Court denied the petition, saying that it was “ preposterous ” and “ unthinkable ” that the statute conferred such power on the Commission; and that if the statute were thus construed, it would violate section 10 of article 10 of the constitution of Missouri. That decision was thereafter consistently acted upon by the Commission; and it was followed by the Supreme Court itself in later cases. No one doubted the authority of the Laclede case until it was expressly overruled in the case at bar. While the defendant’s answer asserted that the plaintiff had not availed itself of the administrative remedies under Articles 3 and 5 of Chapter 119 by application to the boards of equalization and was guilty of laches in not so doing (contentions which the state court held to be unsound), the answer significantly omitted any contention that there had been a remedy by application to" }, { "docid": "22874005", "title": "", "text": "the income derived from business not carried on in New York, in the manufacture and sale of munitions and the manufacture of ware, and the allocation of that net income to New York by the statutory ratio into which only certain assets entered, has resulted in an assessment against it of a tax based upon an allocated income greatly in excess of that in fact derived from the business of selling ware which it carried on within the State. The grounds upon which it challenges the constitutionality of the law are, in substance, as summarized in its brief: (1) That a State cannot constitutionally levy a tax computed on an allocated part of the total net income of a foreign corporation, where the allocation includes certain arbitrarily selected factors, none of which are determinative of net income, and omits other factors equally important, and the result is to allot more income to the State than was earned there and employ income totally unrelated thereto to enlarge the measure of the tax; and (2) That such a tax upon the income earned without the State by a foreign corporation engaged principally in interstate commerce, is a direct burden upon such commerce. We are of the opinion, however, that, without reference to these constitutional questions, the bill was properly dismissed by the District Court because of the failure of the Company to avail itself of the administrative remedy provided by the statute for the revision and correction of the tax. A taxpayer who does not exhaust the remedy provided before an administrative board to secure the correct as sessment of a tax, cannot thereafter be heard by a judicial tribunal to assert its invalidity. Farncomb v. Denver, 252 U. S. 7, 10; Milheim v. Moffat Tunnel District, 262 U. S. 710, 723; McGregor v. Hogan, 263 U. S. 234, 238; First National Bank v. Weld County, 264 U. S. 450, 455. The Company did not report to the Commission any of the facts upon which it now challenges the validity of the tax. Its report indicated that its net income was derived" }, { "docid": "22340685", "title": "", "text": "Article I of the Federal Constitution. Payment of the tax is not made a condition precedent to the right of the corporation to carry on business, including interstate business. * Its enforcement is left to the ordinary means of collecting taxes. St. Louis Southwestern Ry. Co. v. Arkansas, 235 U. S. 350, 364; Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S. 160, 163. The statute is, therefore, not open to the objection that it compels the company to pay for the privilege of engaging in interstate commerce. A tax is not obnoxious to the commerce clause merely because imposed upon property used in interstate commerce, even if it takes the form of a tax for the privilege of exercising its franchise within the State. Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 695. This tax is based upon the net profits earned within the State. That a tax measured by net profits is valid, although these profits may have been derived in part, or indeed mainly, from interstate commerce is settled. U. S. Glue Co. v. Oak Creek, 247 U. S. 321; Shaffer v. Carter, 252 U. S. 37, 57. Compare Peck & Co. v. Lowe, 247 U. S. 165. Whether it be deemed a property tax or a franchise tax, it is not obnoxious to the commerce clause. Second,. It is contended that the tax violates the Fourteenth Amendment because, directly or indirectly, it is imposed on income arising from business conducted beyond the boundaries of the State. In considering this objection we may lay on one side the question whether this is an excise tax purporting to be measured by the income accruing from business within the State or a direct tax upon that income; for the “argument, upon analysis, resolves itself into a mere question of definitions, and has no legitimate bearing upon any question raised under the Federal Constitution.” Shaffer v. Carter, 252 U. S. 37, 55. In support of its objection that business outside the State is taxed plaintiff rests solely upon the showing that of its net profits $1,293,643.95 was" }, { "docid": "22874007", "title": "", "text": "solely from carrying on in New York and elsewhere the unitary business of manufacturing and selling ware. After the account had been audited and the tax computed, it was entitled, as a matter of right, to make application for a revision of the tax and to a hearing before the Commission, at which it might submit evidence; and if it appeared that the account included taxes which could not have been lawfully demanded, the Commission was required to resettle the same “according to law and the facts ”, and adjust the tax accordingly. The Company, however, made no application to the Commission for a revision of the tax; it submitted no evidence to the Commission as to any of the matters on which it now relies, either as to the inclusion of profits derived from the munitions business or otherwise; and it did not request the Commission to resettle the tax on the ground of any error or invalidity, in matter either of fact or law. Under these circumstances we think that the Company, having failed to avail itself of the administrative remedy provided by the statute for the correction of the tax, was not entitled to maintain a bill in equity for the purpose of enjoining its collection. The decree of the District Court is Affirmed. This case was formerly before this Court in Gorham Manufacturing Co. v. Wendell, 261 U. S. 1, in which a substitution of parties was allowed. This Article was inserted in the Tax Law (Consol. Laws of 1909, c. 60, p. 4021), by the Laws of 1917, c. 726, p. 2400, and thereafter amended by the Laws of 1918, c. 271, p. 927, c. 276, p. 938, and c. 417, p. 1^59, all of which were in effect when the tax in question was assessed. The references in the opinion are to the provisions as they stood after these amendments. With certain exceptions not here material. But no certiorari shall be granted unless the full amount of the tax, interest and other charges audited and stated in the account, has been “deposited” with the" }, { "docid": "22874008", "title": "", "text": "failed to avail itself of the administrative remedy provided by the statute for the correction of the tax, was not entitled to maintain a bill in equity for the purpose of enjoining its collection. The decree of the District Court is Affirmed. This case was formerly before this Court in Gorham Manufacturing Co. v. Wendell, 261 U. S. 1, in which a substitution of parties was allowed. This Article was inserted in the Tax Law (Consol. Laws of 1909, c. 60, p. 4021), by the Laws of 1917, c. 726, p. 2400, and thereafter amended by the Laws of 1918, c. 271, p. 927, c. 276, p. 938, and c. 417, p. 1^59, all of which were in effect when the tax in question was assessed. The references in the opinion are to the provisions as they stood after these amendments. With certain exceptions not here material. But no certiorari shall be granted unless the full amount of the tax, interest and other charges audited and stated in the account, has been “deposited” with the State Comptroller. § 219. The amount of this tax was somewhat larger than that which would result, as a matter of calculation, from the figures set forth in the Company’s report. It is stated in the opinion of the District Court that the “ tax as actually assessed contained a duplication of the accounts receivable.” And it is conceded that the Commission did not deduct the federal income taxes from the net income." }, { "docid": "22123950", "title": "", "text": "income derived from the business which it carried on in New York but upon a portion of its net income derived from business carried on outside of the United States which under the provisions of the statute has been arbitrarily allocated to its New York business, and that such imposition of the tax deprives it of its property in violation of the due process clause of the Fourteenth Amendment and imposes a direct burden upon its foreign commerce in violation of the commerce clause of the Constitution. 1. We see no reason to doubt the accuracy of the statement made by the Court of Appeals in the present case that the franchise tax imposed by the statute is “primarily a tax levied for the privilege of doing business in the State.” It is not a direct tax upon the allocated income of the corporation in a given year, but a tax for the privilege of doing business in one year measured by the allocated income accruing from the business in the preceding year. See New York v. Jersawit, 263 U. S. 493, 496. 2. The question of the constitutionality of this tax as applied in the present case is controlled, in its essential aspects, by the decision in Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 120. There the Connecticut statute imposed upon foreign corporations doing business partly within and partly without the State an annual tax of two per cent, upon the net income earned during the preceding year on business carried on within the State, ascertained by taking such proportion of the whole net income on which the corporation was required to pay a tax to the United States as the value of its real and tangible personal property within the State bore to the value of all of its real and tangible personal property. The Underwood Typewriter Company, a Delaware corporation, was engaged in manufacturing and selling typewriters and supplies. All its manufacturing was done in Connecticut, but the greater part of its sales was made from branch offices in other States. It contended that the" }, { "docid": "22874004", "title": "", "text": "net income for the year 1917 as determined by the United States, claiming only one deduction therefrom, namely, the amount paid for federal income taxes, and stated the aggregate values of the classes of its assets specified in the Tax Law, both in New York and wherever located. It did not, however, show that it was also engaged in manufacturing and selling munitions, that its net income as reported was derived to any extent from that business, or that it did not manufacture any ware in New York. The Commission thereupon audited and stated the Company’s account, and computed the tax thereon, of which it gave the Company notice. The Company, how ever, did not apply to the Commission for a revision of the account and resettlement of the tax, but, within less than one year after the account had been audited and stated, brought this suit in the federal court to enjoin the collection of the tax. The Company insists that the inclusion in the net income upon which the tax was based of the income derived from business not carried on in New York, in the manufacture and sale of munitions and the manufacture of ware, and the allocation of that net income to New York by the statutory ratio into which only certain assets entered, has resulted in an assessment against it of a tax based upon an allocated income greatly in excess of that in fact derived from the business of selling ware which it carried on within the State. The grounds upon which it challenges the constitutionality of the law are, in substance, as summarized in its brief: (1) That a State cannot constitutionally levy a tax computed on an allocated part of the total net income of a foreign corporation, where the allocation includes certain arbitrarily selected factors, none of which are determinative of net income, and omits other factors equally important, and the result is to allot more income to the State than was earned there and employ income totally unrelated thereto to enlarge the measure of the tax; and (2) That such" } ]

[ { "docid": "19273961", "title": "", "text": "clause was permissive. The Ninth Circuit engaged in a similar analysis in Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75 (9th Cir.1987), when confronted with a forum se lection clause. The disputed clause in Hunt provided that Buyer and Seller expressly agree that the laws of the State of California shall govern the validity, construction, [and] interpretation ... of this contract. The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract. Id. at 76. The Ninth Circuit held that [although the word “shall” is a mandatory term, here it mandates nothing more than that the Orange County courts have jurisdiction. Thus, [the appellant] cannot object to litigation in the Orange County Superior Court on the ground that the court lacks personal jurisdiction. Id. at 77. The same analysis applies here. The only thing certain about the clause contained in the Corim-Caldas contract is that the parties consented to the personal jurisdiction of the Zurich courts. Beyond that, however, the language does not clearly indicate that the parties intended to declare Zurich to be the exclusive forum for the adjudication of disputes arising out of the contract. As we stated in Keaty, “this is not a situation where the contract, on its face, clearly limits actions thereunder to the courts of a specified locale.” Keaty, 603 F.2d at 956. Our Keaty opinion indicated that language similar to that presented to the Supreme Court in M/S Bremen is the kind required for a court to find an unambiguous, mandatory forum selection clause. Id. at 956-57. The forum selection clause before the Supreme Court in M/S Bremen specified that “[a]ny dispute arising must be treated before the London Court of Justice.” M/S Bremen, 407 U.S. at 2, 92 S.Ct. at 1909. The language of the clause here at issue is not nearly as clear, unequivocal and mandatory as that presented to the Supreme Court. In light of such ambiguity and our own precedents, the language is properly construed against Corim as" } ]

[ { "docid": "20926993", "title": "", "text": "(internal quotations omitted). K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit cited Milk ‘N’ More, Inc. v. Beavert, stating that the Tenth Circuit there had concluded that a forüm-selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit found, however, that no Tenth Circuit case had yet dealt with a forum-selection clause similar' to the one at issue. The Tenth Circuit stated that, “generally speaking,” the Courts of Appeals are in “agreement” that the following formula is to be used in determining whether the selection clause is mandatory or permissive: “[W]here venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified [in a forum selection clause], the clause will generally not be enforced unless there is some further language indicating the parties’ intent to make venue exclusive.” K & V Scientific Co. v. BMW, 314 F.3d at 499 (alterations in original)(quoting Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir.1992)). The Tenth Circuit analyzed language from six forum-selection clauses considered permissive, including four different forum-selection clauses wherein the provision used the word “shall” together with the name of a court. K & V Scientific Co. v. BMW, 314 F.3d at 499. The K & V Scientific Co. v. BMW formula for the four clauses using the word “shall” and considered permissive were: * “Any dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts.” John Boutari [& Son, Wines & Spirits, S.A. v. Attiki Imp. & Distribs. Inc.], 22 F.3d [51,] 52 [(2d Cir. 1994) ]. * “The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract.” Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76 (9th Cir.1987). * “This agreement shall be construed" }, { "docid": "23264115", "title": "", "text": "elsewhere. In our view, Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75 (9th Cir.1987), is controlling authority that the forum selection clause at issue here is permissive, as Pitt-Des Moines contends, not mandatory, as the Laborers contend. In Hunt Wesson, the forum selection clause provided that the courts of Orange County, California, “shall have jurisdiction over the parties in any action” arising out of the contract. Id. at 76. In interpreting this language as permissive rather than mandatory, we said: The language says nothing about the Orange County courts having exclusive jurisdiction. The effect of the language is merely that the parties consent to the jurisdiction of the Orange County courts. Although the word “shall” is a mandatory term, here it mandates nothing more than that the Orange County courts have jurisdiction. Thus, [the defendant] cannot object to litigation in the Orange County Superior Court on the ground that the court lacks personal jurisdiction. Such consent to jurisdiction, however, does not mean that the same subject matter cannot be litigated in any other court. In other words, the forum selection clause in this case is permissive rather than mandatory. Id. at 77. To be mandatory, a clause must contain language that clearly designates a forum as the exclusive one. For example, in Hunt Wesson we distinguished the clause at issue in Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 275 (9th Cir.1984), which stated that “this Agreement shall be litigated only in the Superior Court for Los Angeles, California (and in no other)_” Hunt Wesson, 817 F.2d at 77. Similarly, in Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762 (9th Cir.1989), we held that a clause was rendered mandatory by the additional language that “venue of any action brought hereunder shall be deemed to be in Gloucester County, Virginia.” Id. at 764. In distinguishing Hunt Wesson, we said [tjhis language requires enforcement of the clause because Docksider not only consented to the jurisdiction of the state courts of Virginia, but further agreed by mandatory language that the venue for all actions arising out" }, { "docid": "20926991", "title": "", "text": "agreement, venue shall be in Adams County, Colorado.” 963 F.2d at 1346. In K & V Scientific Co, v. BMW, the parties entered into a'new agreemént which, unlike their earlier agreement, contained a jurisdictional and choice-of-law provision, which stated: “Jurisdiction for all and any disputes arising put of or in connection with this .agreement is Munich. All and any disputes arising out of or in connection with this agreement are subject to the laws of the Federal Republic of Germany.” 314 F.3d at 496. The plaintiff filed suit, asserting various contract, tort, and statutory causes of action. See 314 F.3d at 497. The defendant removed the case to federal court, and moved to dismiss under to rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure for lack of personal jurisdiction and improper venue. The district court granted the defendant’s motion to dismiss for improper venue. The district judge concluded that the forum-selection clause contained in the second' confidentiality agreement was “unambiguous and enforceable,” and demonstrated “[t]he parties’ intent to locate jurisdiction for this action solely in the courts of Munich.” 314 F.3d at 497. On appeal, the plaintiff argued that the clause’s language contained no reference to venue,. contained no language designating the Courts in Munich as exclusive, and contained no -language, indicating that suit elsewhere is impermissible. See 314 F.3d at 497. The Tenth Circuit made the distinction between a venue provision which fixed venue in a certain location — a mandatory clause — versus one which merely granted jurisdiction to a certain place — a permissive clause. The Tenth Circuit set forth an analysis for determining whether forum-selection clauses within a contract are mandatory or permissive: This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell Inc. v. Sterling Boiler & Mech., Inc.], 106 F.3d [318,] 321 [(10th Cir. 1997)]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Id." }, { "docid": "13646210", "title": "", "text": "of words, such as “only” or “exclusively,” which would indicate that the United States District Court for the Southern District of Mississippi is the exclusive forum for actions between the parties. Terra’s arguments cannot stand, however, in the face of a number of decisions distinguishing between “mandatory” and “permissive” forum selection clauses, nor in the face of the ordinary meaning of the words used in the clause. Whether a forum selection clause is mandatory or permissive is a matter of contract interpretation reviewed de novo. Northern California Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1036 (9th Cir.1995) (hereinafter “Council of Laborers ”) (citing Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir.1987)); Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342, 1345 (10th Cir.1992) (whether a forum selection clause is “mandatory” or “permissive” is a question reviewed de novo, because it is “basically one of contract interpretation,” also citing Hunt Wesson Foods, 817 F.2d at 77). Furthermore, where the clause is ambiguous as to whether or not it is mandatory, it should be construed against the drafter. Caldas & Sons, Inc. v. Willingham, 17 F.3d 123, 127 (5th Cir.1994); Milk ‘N’ More, 963 F.2d at 1346 (also concluding that an ambiguity as to the permissive or mandatory nature of the clause should be construed against the drafter); Hunt Wesson Foods, 817 F.2d at 78 (forum selection clause that is ambiguous as to mandatory nature of clause should be construed against drafter). Terra’s argument, apparently, is that a forum selection clause that is neither mandatory nor exclusive may be disregarded, that is, not enforced, by the courts. The Second Circuit Court of Appeals has stated the “general rule” in cases involving interpretation and enforcement of forum selection clauses: “When only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties’ intent to make jurisdiction exclusive.” Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989); see also Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77-78 (9th Cir.1987); Keaty" }, { "docid": "20927059", "title": "", "text": "921, 926 (10th Cir.2005). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d at 926-27 (citation omitted). In K & V Scientific Co. v. BMW, the Tenth Circuit adopted the majority rule for enforcing forum-selection clauses. See 314 F.3d at 500. Specifically, it concluded that, when venue is specified, such as when the parties designate a particular county or tribunal, and the mandatory or obligatory language accompanies the designation, a forum-selection clause will be enforced as mandatory. See K & V Sci. Co. v. BMW, 314 F.3d at 499. Although the Tenth Circuit has said the use of the word “shall” generally indicates a mandatory intent, unless a convincing argument to the contrary is made, Milk ‘N’ More, Inc. v. Beavert, 963 F.2d at 1346, “shall” does not automatically render a forum-selection clause mandatory. Courts should resolve any ambiguity whether a forum-selection clause is mandatory or permissive by construing the language against the drafter. See K & V Sci. Co. v. BMW (citing Milk ‘N’ More, Inc. v. Beavert, 963 F.2d at 1346). The K & V Scientific Co. v. BMW court offered examples of permissive forum-selection clauses that use “shall”: * “The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract.” Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76 (9th Cir.1987). * “This agreement shall be construed and enforceable according to the law of the State of New York and the parties submit to the jurisdiction of the courts of New York.” Keaty [v. Freeport Indon., Inc.], 503 F.2d at 956 (concluding phrase was ambiguous and, when construed against drafter, was permissive). K & V Scientific Co. v. BMW, 314 F.3d at 499. In the first example, “shall” refers to the “courts of California,. County of Orange” as having jurisdiction over related litigation and not that related litigation “shall” be brought in those courts. In Keaty" }, { "docid": "497399", "title": "", "text": "there any language mandating that all litigation take place in Rhode Island or that the parties to the contract litigate only in Rhode Island in connection with the contract. Similarly, the second phrase which says that the parties “waive any objections to venue in [Rhode Island] courts” also is unambiguous. The only reasonable interpretation of this phrase is that the parties to the contract agree not to object to any litigation brought within Rhode Island on the basis of venue. Therefore, no part of the forum selection clause is ambiguous. It is clear, therefore, that the plain and ordinary meaning of the forum selection clause indicates that the clause is permissive in nature rather than mandatory. “ ‘To be mandatory, a forum selection clause must contain language that clearly designates a forum as the exclusive one’.” Trans Nat’l Travel, Inc. v. Sun Pac. Int’l Inc., 10 F.Supp.2d 79, 82 (D.Mass.1998), quoting from Northern California Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir.1995). “Permissive” forum selection clauses “act to confer jurisdiction in a forum over disputes arising out of a contract. These clauses do not include exclusionary language that designates a specific forum to settle claims.” Action Corp. v. Toshiba America Consumer Products, Inc., 975 F.Supp. 170, 176 (D.P.R.1997). To say that a forum selection clause is “permissive” does not mean that it is “effectively read out of the contract.” Snapper, Inc. v. Redan, 171 F.3d 1249, 1262 n. 24 (11th Cir.1999). It only means that the forum selection clause does not prohibit a party from bringing suit in another appropriate forum. Snapper, 171 F.3d at 1262 n. 24. Although there are no Rhode Island cases on point, similar forum selection clauses in other jurisdictions have also been deemed “permissive.” For instance, in Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75 (9th Cir.1987), the court deemed the following forum selection clause to be “permissive”: “The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter of this contract.” Id." }, { "docid": "6084110", "title": "", "text": "forum selection provision is not unreasonable or unjust. For these reasons, the Court finds that Plaintiff has not met the burden of showing that the provision is invalid due to fraud or overreaching, or that enforcement of the provision would be unreasonable and unjust under the circumstances. B. Mandatory Forum Selection Provision Having found that the forum selection provision is valid and enforceable, the Court next must determine whether it is mandatory or permissive. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum,” while permissive clauses do not expressly pro Mbit litigation in other forums. Excell, Inc., 106 F.3d at 321 (internal quotation marks omitted). When a forum selection provision specifies venue, “such as when the parties designate a particular county or tribunal, and the designation is accompanied by mandatory or obligatory language,” then the forum selection provision “will be enforced as mandatory.” American Soda, LLP v. U.S. Filter Wastewater Group, Inc., 428 F.3d 921, 927 (10th Cir. 2005) (citation and footnote omitted). Forum selection provisions that only specify jurisdiction, will be enforced only “if there is some additional language indicating the parties’ intent to make venue exclusive.” Id. Plaintiff contends that the use of the word “shall” in the forum selection provision is ambiguous because it does not refer to venue directly, so the Court should find that the provision is permissive. [Doc. 23 at 6] (citing K & V Scientific Co., Inc. v. Bayerische Motoren Werke Aktiengesellschaft (“BMW”), 314 F.3d 494 (10th Cir.2002)). The Court finds this argument unpersuasive because the forum selection provision at issue here specifies a particular tribunal or tribunals and contains language indicating intent to make that venue exclusive. The forum selection provision in K & V Scientific contains language that refers only to jurisdiction and does so in non-exclusive terms. See K & V Scientific, 314 F.3d at 496 (considering forum selection provision stating, “jurisdiction for all and any disputes arising out of or in connection with this agreement is Munich. All and any disputes arising out of or in connection with this agreement are" }, { "docid": "20926986", "title": "", "text": "Act does not grant statutory immunity for such claims. We have been shown nothing to ' suggest than an English court would not be fair, and in fact, our courts have long recognized that the courts of England are fair and neutral forums. Given the international nature of the insurance underwriting transaction, the parties’ forum selection and choice of law provisions contained in the agreements should be given effect. Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d at 958 (citations omitted). Judge Martinez has similarly held that, “[t]o invalidate a forum selection provision for reasons of inconvenience, however, a party must show that enforcement of the provision would cause an inconvenience ‘so serious as to foreclose a remedy.’ ” Mann v. Auto. Protection Corp., 777 F.Supp.2d at 1240 (quoting Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d at 958). ■■ 3.. Permissive and Mandatory Forum-Selection Clauses. “The difference between a mandatory and permissive forum selection clause is that ‘[mjandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated -forum.’ ” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 926 (10th Cir.2005). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d at 926-27 (citation omitted). In K & V Scientific Co. v. BMW, the Tenth Circuit adopted the majority rule for enforcing forum-selection clauses. See 314 F.3d at 500. Specifically, it concluded that, when venue is specified, such as when the parties designate a particular county or tribunal, and mandatory or obligatory language accompanies the designation, a forum-selection clause will be enforced as mandatory. See K & V Scientific Co. v. BMW, 314 F.3d at 499. In Milk ‘N’ More, Inc. v. Beavert, the Tenth Circuit held that the forum-selection clause was mandatory and precluded removal of the case to federal court. See 963 F.2d at 1343. In that case, the defendant appealed an order remanding the breach-of-contract action to a Kansas state court. See 963 F.2d at 1343. The federal" }, { "docid": "10648863", "title": "", "text": "not preclude Riley from pursuing an action for fraud and we agree with the Defendants that the Lloyd’s Act does not grant statutory immunity for such claims. We have been shown nothing to suggest than an English court would not be fair, and in fact, our courts have long recognized that the courts of England are fair and neutral forums. Given the international nature of the insurance underwriting transaction, the parties’ forum selection and choice of law provisions contained in the agreements should be given effect. Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d at 958 (citations omitted). Magistrate Judge Martinez has similarly held that, “[t]o invalidate a forum selection provision for reasons of inconvenience, however, a party must show that enforcement of the provision would cause an inconvenience ‘so serious as to foreclose a remedy.’ ” Mann v. Auto. Protection Corp., 777 F.Supp.2d at 1240 (quoting Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d at 958). 3. Permissive and Mandatory Forum-Selection Clauses. “The difference between a mandatory and permissive forum selection clause is that ‘Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.’ ” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 926 (10th Cir.2005). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d at 926-27 (citation omitted). In K & V Scientific Co. v. BMW, the Tenth Circuit adopted the majority rule for enforcing forum-selection clauses. See 314 F.3d at 500. Specifically, it concluded that, when venue is specified, such as when the parties designate a particular county or tribunal, and the designation is accompanied by mandatory or obligatory language, a forum-selection clause will be enforced as mandatory. See K & V Scientific Co. v. BMW, 314 F.3d at 499. In Milk ‘N’ More, Inc. v. Beavert, the Tenth Circuit held that the forum-selection clause was mandatory and precluded removal of the case to federal court. See 963 F.2d at 1343. In that case, the defendant" }, { "docid": "10117685", "title": "", "text": "into a new agreement which, unlike their earlier agreement, contained a jurisdictional and choice-of-law provision, which stated: “Jurisdiction for all and any disputes arising out of or in connection with this agreement is Munich. All and any disputes arising out of or in connection with this agreement are subject to the laws of the Federal Republic of Germany.” 314 F.3d at 496. The plaintiff filed suit, asserting various contract, tort, and statutory causes of action. See 314 F.3d at 497. The defendant removed the case to federal court, and moved to dismiss under to rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure for lack of personal jurisdiction and improper venue. See 314 F.3d at 497. The district court granted the defendant’s motion to dismiss for improper venue. See 314 F.3d at 497. The district judge concluded that the forum selection clause contained in the second confidentiality agreement was “unambiguous and enforceable,” and demonstrated “[t]he parties’ intent to locate jurisdiction for this action solely in the courts of Munich.” 314 F.3d at 497. On appeal, the plaintiff argued that the clause’s language contained no reference to venue, contained no language designating the courts in Munich as exclusive, and contained no language indicating that suit elsewhere is impermissible. See 314 F.3d at 497. The Tenth Circuit made the distinction between a venue provision which fixed venue in a certain location—a mandatory clause—versus one which merely granted jurisdiction to a certain place—a permissive clause. The Tenth Circuit set forth an analysis for determining whether forum selection clauses within a contract are mandatory or permissive: This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell[, Inc. v. Sterling Boiler & Mech., Inc.], 106 F.3d [318,] 321 [(10th Cir.1997) ]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction ⅛ a designated forum, but do not prohibit litigation elsewhere.” Id. (internal quotations omitted). K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth" }, { "docid": "10648870", "title": "", "text": "1997) ]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Id. (internal quotations omitted). K & V Scientific Co., Inc. v. BMW, 314 F.3d at 498. The Tenth Circuit cited Milk ‘N’ More, Inc. v. Beavert, stating that the Tenth Circuit there had concluded that a forum-selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. See id. at 498. The Tenth Circuit found, however, that no Tenth Circuit case had yet dealt with a forum-selection clause similar to the one at issue. The Tenth Circuit stated that, “generally speaking,” the Courts of Appeals are in “agreement” that the following formula is to be used in determining whether the selection clause is mandatory or permissive: [W]here venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified [in a forum selection clause], the clause will generally not be enforced unless there is some further language indicating the parties’ intent to make venue exclusive. K & V Scientific Co., Inc. v. BMW, 314 F.3d at 499 (alterations in original)(quoting Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992)). The Tenth Circuit analyzed language from six forum-selection clauses considered permissive, including four different forum-selection clauses wherein the provision used the word “shall” together with the name of a court. K & V Scientific Co., Inc. v. BMW, 314 F.3d at 499. The K & V Scientific Co., Inc. v. BMW formula for the four clauses using the word “shall” and considered permissive were: * “Any dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts.” John Boutari [& Son, Wines & Spirits, S.A. v. Attiki Imp. & Distnbs. Inc.], 22 F.3d [51,] 52 [ (2d Cir. 1994) ]. * “The courts of California, County of Orange, shall" }, { "docid": "9175856", "title": "", "text": "3. Plaintiff does not dispute the general validity of the choice of law provision in the MSA. Rather, Plaintiff contends that under both Tenth Circuit law and Texas law, the MSA's choice of law provision contains a permissive forum selection clause, which renders jurisdiction and venue permissible but not exclusive or mandatory in Texas and thus does not prohibit the parties from filing suit in another jurisdiction. \"Courts classify forum selection clauses as either mandatory or permissive.\" Excell, Inc. v. Sterling Boiler & Mech. , 106 F.3d 318, 321 (10th Cir. 1997). \"Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.\" Id. (citations omitted). \"In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.\" Id. Under Tenth Circuit law, when a forum selection clause specifies not only jurisdiction but also venue, such as by designating a particular county or tribunal, if \"the designation is accompanied by mandatory or obligatory language,\" the clause \"will be enforced as mandatory.\" Am. Soda, LLP v. Filter Wastewater Group, Inc. , 428 F.3d 921, 927 (10th Cir. 2005). Also under Tenth Circuit law, where only jurisdiction is specified, the Court will enforce a forum selection clause as mandatory only \"if there is some additional language indicating the parties' intent to make venue exclusive,\" such as \"exclusive,\" \"sole,\" or \"only.\" Id. ; K & V Sci. Co. v. BMW , 314 F.3d 494, 500 (10th Cir. 2002) ; see also King v. PA Consulting Group, Inc. , 78 Fed.Appx. 645, 647 (10th Cir. 2003) (\"[A] clause specifying a forum for jurisdiction may mandate that forum for purposes of venue as well, if it contains clear language showing that jurisdiction is appropriate only in the designated forum.\"). Similarly, under Texas law, \"[f]or a forum selection clause to be considered mandatory or exclusive, the clause \"must go beyond establishing that a particular forum will have jurisdiction and must clearly demonstrate the parties' intent to make that jurisdiction exclusive.\" In re Agresti , No. 13-14-00126, 2014 WL 3408691, at *5 (Tex. Ct. App." }, { "docid": "9624063", "title": "", "text": "651413, *3 (10th Cir. Aug.26, 1999) (“venue is proper in the District Court of Eagle County, Colorado” mandatory); SBKC Service Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 581-82 (10th Cir.1997) (“an action may be maintained in the State of Kansas and the County of Wyan-dotte” permissive; distinguishing Milk ‘N’ More) (emphasis added); Excell, 106 F.3d at 320-21 (“jurisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado” mandatory). Particularly in light of this Tenth Circuit jurisprudence, the Court believes the parties’ forum selection clause, “jurisdiction. . .is Munich,” is unambiguous. This holding also finds support in other circuits. The Seventh Circuit, for example, found a very similar forum selection clause, “place of jurisdiction... is the registered office of the trustee [Germany], to the extent permissible under the law,” to be mandatory. Frietsch v. Refco, 56 F.3d 825, 829 (7th Cir.1995). Judge Posner found the plaintiffs argument that the clause was permissive “implausible. The absence of the indefinite article (the clause says ‘place of jurisdiction’ is Germany, not ‘a place of jurisdiction’ is Germany) implies that there is only one place of jurisdiction.” Id. However, as K & V posits, “the general rule in cases containing forum selection clauses. is that “when only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties’ intent to make jurisdiction exclusive.’ ” John Boutari and Son, 22 F.3d at 52 (quoting Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989)); see also Paper Express, 972 F.2d at 757; Hunt Wesson Foods, 817 F.2d at 77-78. From this, K & V reasons that either the specific designation of “venue” or the mandatory language “exclusive” is required. See, e.g., Docksider, 875 F.2d 762 (“venue of any action brought hereunder shall be deemed to be in Gloucester County, VA” is “mandatory language makfing] clear that venue, the place of suit, lies exclusively in the designated county”) (emphasis added); Hunt Wesson Foods, 817 F.2d at 77 (the language “ ‘Orange County courts shall have jurisdiction over this" }, { "docid": "10648869", "title": "", "text": "lack of personal jurisdiction and improper venue. The district court granted the defendant’s motion to dismiss for improper venue. The district judge concluded that the forum-selection clause contained in the second confidentiality agreement was “unambiguous and enforceable,” and demonstrated “[t]he parties’ intent to locate jurisdiction for this action solely in the courts of Munich.” Id. On appeal, the plaintiff argued that the clause’s language contained no reference to venue, contained no language designating the courts in Munich as exclusive, and contained no language indicating that suit elsewhere is impermissible. See id. The Tenth Circuit made the distinction between a venue provision which fixed venue in a certain location — a mandatory clause — versus one which merely granted jurisdiction to a certain place — a permissive clause. The Tenth Circuit set forth an analysis for determining whether forum-selection clauses within a contract are mandatory or permissive: This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell[ Inc. v. Sterling Boiler & Mech., Inc.], 106 F.3d [318,] 321 [(10th Cir. 1997) ]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Id. (internal quotations omitted). K & V Scientific Co., Inc. v. BMW, 314 F.3d at 498. The Tenth Circuit cited Milk ‘N’ More, Inc. v. Beavert, stating that the Tenth Circuit there had concluded that a forum-selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. See id. at 498. The Tenth Circuit found, however, that no Tenth Circuit case had yet dealt with a forum-selection clause similar to the one at issue. The Tenth Circuit stated that, “generally speaking,” the Courts of Appeals are in “agreement” that the following formula is to be used in determining whether the selection clause is mandatory or permissive: [W]here venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is" }, { "docid": "20926992", "title": "", "text": "action solely in the courts of Munich.” 314 F.3d at 497. On appeal, the plaintiff argued that the clause’s language contained no reference to venue,. contained no language designating the Courts in Munich as exclusive, and contained no -language, indicating that suit elsewhere is impermissible. See 314 F.3d at 497. The Tenth Circuit made the distinction between a venue provision which fixed venue in a certain location — a mandatory clause — versus one which merely granted jurisdiction to a certain place — a permissive clause. The Tenth Circuit set forth an analysis for determining whether forum-selection clauses within a contract are mandatory or permissive: This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell Inc. v. Sterling Boiler & Mech., Inc.], 106 F.3d [318,] 321 [(10th Cir. 1997)]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Id. (internal quotations omitted). K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit cited Milk ‘N’ More, Inc. v. Beavert, stating that the Tenth Circuit there had concluded that a forüm-selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit found, however, that no Tenth Circuit case had yet dealt with a forum-selection clause similar' to the one at issue. The Tenth Circuit stated that, “generally speaking,” the Courts of Appeals are in “agreement” that the following formula is to be used in determining whether the selection clause is mandatory or permissive: “[W]here venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified [in a forum selection clause], the clause will generally not be enforced unless there is some further language indicating the parties’ intent to make venue exclusive.” K & V Scientific Co. v. BMW, 314 F.3d" }, { "docid": "9624064", "title": "", "text": "is Germany, not ‘a place of jurisdiction’ is Germany) implies that there is only one place of jurisdiction.” Id. However, as K & V posits, “the general rule in cases containing forum selection clauses. is that “when only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties’ intent to make jurisdiction exclusive.’ ” John Boutari and Son, 22 F.3d at 52 (quoting Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989)); see also Paper Express, 972 F.2d at 757; Hunt Wesson Foods, 817 F.2d at 77-78. From this, K & V reasons that either the specific designation of “venue” or the mandatory language “exclusive” is required. See, e.g., Docksider, 875 F.2d 762 (“venue of any action brought hereunder shall be deemed to be in Gloucester County, VA” is “mandatory language makfing] clear that venue, the place of suit, lies exclusively in the designated county”) (emphasis added); Hunt Wesson Foods, 817 F.2d at 77 (the language “ ‘Orange County courts shall have jurisdiction over this action’... says nothing about the Orange County courts having exclusive jurisdiction”) (emphasis added). The Court must disagree. In this case, the parties have included a choice of law clause stating that German law governs any dispute arising from the Agreement. This clause supports the interpretation that jurisdiction is to be located exclusively in a court best suited to interpret and apply German law, e.g., Munich. See Samson Plastic Conduit and Pipe Corp. v. Battenfeld Extrusionstechnik GMBH, 718 F.Supp. 886, 891-92 (M.D.Ala.1989) (mandatory forum selection clause, “court of jurisdiction for both contracting parties. . .is the court competent to deal with [German corporation’s] head office,” supported by clause stating that German law governs the legal relationship between the contracting parties). Cf. Frietsch, 56 F.3d at 829; Paper Express, 972 F.2d at 756-57. In addition, the 1997 Agreement references German criminal statutes delimiting penalties for the infringement of trade secrets. As BMW correctly points out, German criminal law is meaningless outside German borders. The parties’ intent to locate jurisdiction for this action solely in the courts of" }, { "docid": "10117686", "title": "", "text": "On appeal, the plaintiff argued that the clause’s language contained no reference to venue, contained no language designating the courts in Munich as exclusive, and contained no language indicating that suit elsewhere is impermissible. See 314 F.3d at 497. The Tenth Circuit made the distinction between a venue provision which fixed venue in a certain location—a mandatory clause—versus one which merely granted jurisdiction to a certain place—a permissive clause. The Tenth Circuit set forth an analysis for determining whether forum selection clauses within a contract are mandatory or permissive: This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell[, Inc. v. Sterling Boiler & Mech., Inc.], 106 F.3d [318,] 321 [(10th Cir.1997) ]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction ⅛ a designated forum, but do not prohibit litigation elsewhere.” Id. (internal quotations omitted). K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit cited Milk ‘N’ More, Inc. v. Beavert, stating that the Tenth Circuit there had concluded that a forum selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit found, however, that no Tenth Circuit ease had yet dealt with a forum selection clause similar to the one at issue. The Tenth Circuit stated that, “generally speaking,” the Courts of Appeals are in “agreement” that the following formula is to be used in determining whether the selection clause is mandatory or permissive: “[W]here venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified [in a forum selection clause], the clause will generally not be enforced unless there is some further language indicating the parties’ intent to make venue exclusive.” K & V Scientific Co. v. BMW, 314 F.3d at 499 (alterations in original)(quoting Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d" }, { "docid": "20927058", "title": "", "text": "by the parties. DaPuzzo v. Globalvest Mgmt. Co., L.P., 263 F.Supp.2d 714, 739 (S.D.N.Y.2003) (Marrero, J.). While the Court declines to ponder whether Presbyterian Healthcare’ choice of venue reflects “gamesmanship and forum shopping,” Motion at 14, it concludes that when, as in this case, a forum-selection clause designates a forum other than the one that can lawfully compel arbitration, that bargained-for forum remains the appropriate venue for a party seeking to compel arbitration, if only to earn the right to bring the suit elsewhere. The forum-séleetion clause is mandatory, because its language cannot be reasonably construed as being permissive. Goldman Sachs argues that the exclusive forum-selection clause is mandatory by its use of the word “shall.” Motion at 10 (citing Goldman, Sachs & Co. v. Golden Empire Sch. Fin. Auth., 922 F.Supp.2d at 443). “The difference between a mandatory and permissive forum selection clause is that ‘[m]andatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.’ ” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 926 (10th Cir.2005). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d at 926-27 (citation omitted). In K & V Scientific Co. v. BMW, the Tenth Circuit adopted the majority rule for enforcing forum-selection clauses. See 314 F.3d at 500. Specifically, it concluded that, when venue is specified, such as when the parties designate a particular county or tribunal, and the mandatory or obligatory language accompanies the designation, a forum-selection clause will be enforced as mandatory. See K & V Sci. Co. v. BMW, 314 F.3d at 499. Although the Tenth Circuit has said the use of the word “shall” generally indicates a mandatory intent, unless a convincing argument to the contrary is made, Milk ‘N’ More, Inc. v. Beavert, 963 F.2d at 1346, “shall” does not automatically render a forum-selection clause mandatory. Courts should resolve any ambiguity whether a forum-selection clause is mandatory or permissive by construing the language against the drafter. See" }, { "docid": "10117687", "title": "", "text": "Circuit cited Milk ‘N’ More, Inc. v. Beavert, stating that the Tenth Circuit there had concluded that a forum selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. K & V Scientific Co. v. BMW, 314 F.3d at 498. The Tenth Circuit found, however, that no Tenth Circuit ease had yet dealt with a forum selection clause similar to the one at issue. The Tenth Circuit stated that, “generally speaking,” the Courts of Appeals are in “agreement” that the following formula is to be used in determining whether the selection clause is mandatory or permissive: “[W]here venue is specified [in a forum selection clause] with mandatory or obligatory language, the clause will be enforced; where only jurisdiction is specified [in a forum selection clause], the clause will generally not be enforced unless there is some further language indicating the parties’ intent to make venue exclusive.” K & V Scientific Co. v. BMW, 314 F.3d at 499 (alterations in original)(quoting Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir.1992)). The Tenth Circuit analyzed language from six forum selection clauses considered permissive, including four different forum selection clauses wherein the provision used the word “shall” together with the name of a court. K & V Scientific Co. v. BMW, 314 F.3d at 499. The K & V Scientific Co. v. BMW formula for the four clauses using the word “shall” and considered permissive were: * “Any dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts.” John Boutari [& Son, Wines & Spirits, S.A. v. Attiki Imp. & Distribs. Inc.], 22 F.3d [51,] 52 [ (2d Cir.1994) ]. * “The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating: to the subject matter or the interpretation of this contract.” Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76 (9th Cir.1987). * “This agreement shall be construed and enforceable according to the law of the State of New York" }, { "docid": "10117680", "title": "", "text": "England are fair and neutral forums. Given the international nature of the insurance un derwriting transaction, the parties’ forum selection and choice of law provisions contained in the agreements should be given effect. Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d at 958 (citations omitted). Judge Martinez has similarly held that, “[t]o invalidate a forum selection provision for reasons of inconvenience, however, a party must show that enforcement of the provision would cause an inconvenience ‘so serious as to foreclose a remedy.’ ” Mann v. Auto. Protection Corp., 777 F.Supp.2d at 1240 (quoting Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d at 958). 3. Permissive and Mandatory Forum Selection Clauses. “The difference between a mandatory and permissive forum selection clause is that ‘[m]andatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.’” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 926 (10th Cir.2005), “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d at 926-27 (citation omitted). In K & V Scientific Co. v. BMW, the Tenth Circuit adopted the majority rule for enforcing forum selection clauses. See 314 F.3d at 500. Specifically, it concluded that, when venue is specified, such as when the parties designate a particular county or tribunal, and mandatory or obligatory language accompanies the designation, a forum selection clause will be enforced as mandatory. See K & V Scientific Co. v. BMW, 314 F.3d at 499. In Milk ‘N’ More, Inc. v. Beavert, the Tenth Circuit held that the forum selection clause was mandatory and precluded removal of the case to federal court. See 963 F.2d 1342, 1343 (10th Cir.1992). In that ease, the defendant appealed an order remanding the breach-of-contract action to a Kansas state court. See 963 F.2d at 1343. The federal district court concluded that an enforceable forum selection clause in the agreement required the remand. See 963 F.2d at 1343. The clause in the Milk ‘N’ More, Inc. v. Beavert agreement provided:" } ]

[ { "docid": "22858139", "title": "", "text": "judgment rule, whereby, with certain statutory and judicial exceptions, a party may not appeal a federal district court decision until it is final. 28 U.S.C. §§ 1291-1292. Viewed in this context, Chevron's challenge to ITA’s determination to postpone, based on an unrelated matter, would appear akin to an interlocutory appeal under the collateral order doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We are cautious, however, in applying any such general litigating precepts to this case, which is governed by the precise and peculiar statutory framework herein dissected. . The Government concedes that Freeport would not have been able to challenge the adverse sales-at-less-than-fair-value findings of the 1982 notice in an action intervening upon Chevron’s appeal, based on Fuji Elec. Co. v. United States, 595 F.Supp. 1152 (Ct. Int’l Trade 1984). . See part 2 infra setting forth the pertinent part of the lower court’s remand. Specifically, that court ordered ITA to \"make a determination\" upon remand, absent the unrelated issue and in accordance with the facts ascertained previously. . Any other view would void the action for noncompliance with the statute. . Chevron Standard Ltd., 563 F.Supp. at 1384. . Chevron Standard Ltd., No. 83-55. . Freeport Minerals Co., 583 F.Supp. at 590. . 28 U.S.C. § 2643(c)(1). We note for purposes of comparison that our predecessor court, the Court of Claims, frequently fashioned relief requiring, after remand, that counsel advise the court by letter to the trial judge of the status of the remand proceedings, and that proceedings before the Court of Claims be stayed for a stated period from the date of remand. See, e.g., Blake Constr. Co. v. United States, 597 F.2d 1357, 1360, 220 Ct.Cl. 56 (1979). . Cf. Roquette Freres & Roquette Corp. v. United States, 554 F.Supp. 1246, 5 C.I.T. 239 (1983), in which the lower court retained jurisdiction over an action challenging an antidumping order, while it remanded the material injury determination of the International Trade Commission for redetermination and return to the court within 60 days. That situation differs from the one" } ]

[ { "docid": "8437850", "title": "", "text": "of comparable merchandise by the individual producer under investigation; [2] profits on third country sales of comparable merchandise by the individual producer under investigation, to the extent such information is readily available; or if not, [3] profits on home market sales of comparable merchandise by the industry. 46 Fed.Reg. at 25,497. The record confirms that Commerce verified that Kajaria and Serampore had no home market or third country sales for the products under investigation and no home market or third country sales of similar merchandise during the period of investigation R. 1243,1330; Conf.R. 994, 1073, 1160, 1313. The record also shows that Commerce verified that Kejriwal and RSI had virtually no home market or third country sales for the products under investigation and no home market or third country sales of similar merchandise during the period of investigation. R. 1264,1285; Conf.R. 1094, 1115,1192,1372. The record thus provides substantial evidence to support Commerce’s determination that it could not use either of the first two elements announced in Strontium Nitrate From Italy. The Court also finds that Commerce acted reasonably in not resorting to the industry profits option announced in Strontium Nitrate From Italy, the “profits on home market sales of comparable merchandise by the industry.” 46 Fed.Reg. at 25,497. A finding of dumping is a determination that a specific company is selling goods below cost or at a price below that charged in the domestic market. A company can avoid sales at less than fair value by raising its prices, which in the absence of rising costs of input, will raise that company’s profit margin. Use of another company’s profits to determine whether an investigated company is dumping may send the wrong message to the investigated company. Application of an average of several producers’ profits would also tend to deprive any single producer of knowledge of the total amount of its particular FMV and thus deprive it of an ability to adjust its prices accordingly to ensure that it was not selling in the United States at less than fair value. The domestic producers also argue that Commerce should have used" }, { "docid": "18850375", "title": "", "text": "Memorandum Decision and Order DiCarlo, Judge: Several Indian exporters of iron construction castings allege that the United States Department of Commerce lacks authority to conduct administrative reviews of a dumping order. Alleging the Court’s residual jurisdiction under 28 U.S.C. § 1581(i) (1982), they seek to enjoin Commerce from publishing any results in two pending administrative reviews covering iron construction castings from India. Defendants move pursuant to Rule 12(b) of the Rules of this Court to dismiss this action for lack of jurisdiction or, alternatively, for failure to state a claim as to which relief can be granted. The Court finds that it has jurisdiction under 28 U.S.C. § 1581(i) (1982), but that the Indian exporters are not entitled to an injunction against publication of either the preliminary or final review results in the pending administrative reviews. Background Commerce published a final affirmative determination on March 19, 1986 finding that iron castings from India, except those sold by RSI (India) Pvt. Ltd., Kejriwal and Kajaria, were being sold at less than fair value in the United States. Certain Iron Construction Castings From India; Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 9486 (Mar. 19, 1986). The antidumping duty order was published on May 9, 1986. Antidumping Duty Order; Iron Construction Castings From India, 51 Fed. Reg. 17,221 (May 9, 1986). Fifteen domestic producers of iron construction castings challenged the exclusion from the dumping order of three Indian exporters — RSI, Kejriwal, and Kajaria. This litigation did not affect the exclusion of RSI or Kajaria, but did result in an affirmative dumping margin of 2.93 percent for Kejriwal. Alhambra Foundry Co., Ltd. v. United States, 12 CIT 343, 685 F. Supp. 1252, and 12 CIT 1110, 701 F. Supp. 221 (1988). In a separate action, Serampore Industries and the Engineering Export Promotion Council of India challenged the affirmative findings for Serampore and the \"all others.” This litigation ultimately resulted in Serampore’s exclusion from the dumping order because its dumping margin of 0.487 percent was found to be de minimis. Serampore Indus. Pvt., Ltd. v. United States Dep’t of" }, { "docid": "8437860", "title": "", "text": "heavy castings on line 107 of Commerce’s final computer printout. Conf.R. 1254, 1591. At oral argument the defendant consented to a remand on these issues to correct the challenged figures. These parts of the action are remanded. The domestic producers also contest Commerce’s treatment of indirect taxes rebated to Kejriwal under the Cash Compensatory Support (CCS) program. R. 1394-95. Commerce added both the CCS payment and the excise duty drawback to USP. Commerce concedes that an upward adjustment to USP was improper, and asks the Court to remand. This part of the action is remanded. 6. RELIEF BEYOND THE COMPLAINT AND PRAYER FOR RELIEF The domestic producers assert that during verification in India, Commerce determined that Serampore had incorrectly reported the number of pieces involved in certain transactions. Defendant informed the Court at argument that correction of this error would require sending another verification team to India. The Court does not reach this contention against Serampore in the absence of defendant’s consent. The domestic producers’ complaint is expressly limited to challenging Commerce’s final determinations for RSI, Kejriwal, and Kajaria. Complaint at 4. Serampore’s dumping margin is the subject of Serampore Indus. v. United States Dept. of Commerce, 11 CIT —, 675 F.Supp. 1354 (1987). In the absence of the defendant’s consent, the Court declines to order relief outside the scope of the domestic producers’ complaint and request for relief when the remedy would entail great expense in conducting another verification in India. 7. RELIEF OUTSIDE THE JURISDICTION OF THE COURT The Indian exporters move the Court to remand for recalculation of the Indian central sales tax, consistent with the government’s consent to a remand on the same issue in Serampore Indus., 11 CIT at —, 675 F.Supp. at 1357-58. Judicial authority supports granting a request for remand if it fosters and promotes fundamental fairness. ILWU Local 142 v. Donovan, 12 CIT —, 678 F.Supp. 307, 310 (1988). Additionally, Rule 1 of the Rules of this Court provides that the Rules of the Court \"shall be construed to secure the just, speedy, and inexpensive determination of every action.” RSI, Kejriwal, and" }, { "docid": "8437862", "title": "", "text": "Kajaria had not previously contested Commerce’s treatment of the central sales tax because no affirmative dumping finding was entered against them. As a general rule, a prevailing party in an administrative proceeding may not appeal the proceeding only because it disagrees with some of the findings or reasoning. Freeport Minerals Co. v. United States, 3 Fed.Cir. (T) 114, 119, 758 F.2d 629, 634 (1985). Although the Court is sympathetic to the plea that denial of the motion would cause undue delay if the remand results produce actionable dumping margins against RSI, Kejriwal and Kajaria, the Court finds that it lacks jurisdiction to order a remand in this case for the recalculation of the tax incidence on castings produced by RSI, Kejriwal and Kajaria. These exporters intervened “for the purpose of defending [Commerce’s] determination that Kejriwal, Kajaria, and RSI are not selling certain iron construction castings to the U.S. at less than fair value.” Motion to Intervene, filed July 2, 1986. This Court has consistently held that it lacks jurisdiction over a challenge to a Commerce determination made by an intervenor when the challenge is made subsequent to the thirty day deadline under 19 U.S.C. § 1516a(a)(2) for instituting an action. National Ass’n of Mirror Mfgs. v. United States, 11 CIT —, 670 F.Supp. 1013 (1987); Washington Red Raspberry Comm’n v. United States, 11 CIT —, 657 F.Supp. 537, 545-46 (1987); East Chilliwack Fruit Growers Cooperative v. United States, 11 CIT —, 655 F.Supp. 499, 504-05 (1987); Al Tech Specialty Steel Corp. v. United States, 10 CIT —, 633 F.Supp. 1376, 1380 (1986); Fuji Elec. Co. v. United States, 7 CIT 247, 595 F.Supp. 1152, appeal dismissed, No. 84-1639 (Fed.Cir.1984); Nakajima All Co. v. United States, 2 CIT 170 (1981) [available on WESTLAW, 1981 WL 2473]. The Indian exporters did not commence an action to challenge Commerce’s findings as to RSI, Kejriwal, and Kajaria. They raised the issue concerning the recalculation of the tax incidence incurred on their castings for the first time in response to plaintiffs’ motion for judgment upon the agency record. Under the cases and statutory framework, the" }, { "docid": "8437861", "title": "", "text": "RSI, Kejriwal, and Kajaria. Complaint at 4. Serampore’s dumping margin is the subject of Serampore Indus. v. United States Dept. of Commerce, 11 CIT —, 675 F.Supp. 1354 (1987). In the absence of the defendant’s consent, the Court declines to order relief outside the scope of the domestic producers’ complaint and request for relief when the remedy would entail great expense in conducting another verification in India. 7. RELIEF OUTSIDE THE JURISDICTION OF THE COURT The Indian exporters move the Court to remand for recalculation of the Indian central sales tax, consistent with the government’s consent to a remand on the same issue in Serampore Indus., 11 CIT at —, 675 F.Supp. at 1357-58. Judicial authority supports granting a request for remand if it fosters and promotes fundamental fairness. ILWU Local 142 v. Donovan, 12 CIT —, 678 F.Supp. 307, 310 (1988). Additionally, Rule 1 of the Rules of this Court provides that the Rules of the Court \"shall be construed to secure the just, speedy, and inexpensive determination of every action.” RSI, Kejriwal, and Kajaria had not previously contested Commerce’s treatment of the central sales tax because no affirmative dumping finding was entered against them. As a general rule, a prevailing party in an administrative proceeding may not appeal the proceeding only because it disagrees with some of the findings or reasoning. Freeport Minerals Co. v. United States, 3 Fed.Cir. (T) 114, 119, 758 F.2d 629, 634 (1985). Although the Court is sympathetic to the plea that denial of the motion would cause undue delay if the remand results produce actionable dumping margins against RSI, Kejriwal and Kajaria, the Court finds that it lacks jurisdiction to order a remand in this case for the recalculation of the tax incidence on castings produced by RSI, Kejriwal and Kajaria. These exporters intervened “for the purpose of defending [Commerce’s] determination that Kejriwal, Kajaria, and RSI are not selling certain iron construction castings to the U.S. at less than fair value.” Motion to Intervene, filed July 2, 1986. This Court has consistently held that it lacks jurisdiction over a challenge to a Commerce" }, { "docid": "23583372", "title": "", "text": "Opinion for the court filed by Circuit Judge SCHALL. Opinion, dissenting-in-part, filed by Circuit Judge RADER. SCHALL, Circuit Judge. This action stems from an administrative review of a countervailing duty order covering iron-metal castings from India. Plaintiffs-Appellants, Kajaria Iron Castings Pvt. Ltd. (“Kajaria”), Calcutta Ferrous Ltd., Crescent Foundry Co. Pvt. Ltd., Commex Corporation, Dinesh Brothers (“Dinesh”), Nandikeshwari Pvt. Ltd., Carnation Enterprises Pvt. Ltd., Kejriwal Iron & Steel Works, R.B. Agarwalla & Company, RSI Limited, Serampore Industries Pvt. Ltd., Ti-rupati International (P) Ltd., and Uma Iron & Steel Co. (collectively “Producers”), are Indian producers and exporters of iron-metal castings. Defendants-Appellees, Alhambra Foundry, Inc., Allegheny Foundry Co., Deeter Foundry, Inc., East Jordan Iron Works, Inc., Lebaron Foundry Inc., Municipal Castings, Inc., Neenah Foundry Co., U.S. Foundry & Manufacturing Co., and Vulcan Foundry, Inc. (collectively “Domestic Industry”), are United States producers of iron-metal castings. The Producers appeal the final decision of the United States Court of International Trade sustaining the determination of the International Trade Administration, United States Department of Commerce (“Commerce”), that the Producers were receiving net subsidies on iron-metal eastings that were within the scope of the countervailing duty order and that were imported into the United States, and therefore imposing countervailing duties on the castings. See Kajaria Iron Castings Pvt. Ltd. v. United States, 969 F.Supp. 90 (Ct. Int’l Trade 1997) (“Kajaria II ”); Kajaria Iron Castings Pvt. Ltd. v. United States, 956 F.Supp. 1023 (CIT 1991) (“KajariaI”). The Producers allege that Commerce’s methodology double counted certain subsidies and included income from merchandise not covered by the countervailing duty order in calculating the net subsidy. They also allege that Commerce’s methodology in calculating the country-wide countervailing duty rate was erroneous because it included producers with significantly different higher subsidy rates and rates based on the best information available (“BIA”). Because Commerce’s methodology did double count subsidies and did include income from merchandise not covered by the countervailing duty order in determining the net subsidy, we reverse and remand for further proceedings. However, we affirm Commerce’s methodology for calculating the country-wide countervailing duty rate. BACKGROUND I. The countervailing duty laws impose" }, { "docid": "8437857", "title": "", "text": "and frames. Commerce verified the existence of the inspection charge by examining its existence on sample sales. R. 1394, Conf.R. 1318. Commerce made no adjustment for inspection charges on the challenged eleven sales because Kejriwal did not report these charges for the eleven sales, which were not part of the sample. The record supports the conclusion that Commerce only made adjustments when inspection charges were incurred. Conf.R. 440 (at lines 37-47). This part of the action is affirmed. 4. WITHDRAWN CLAIMS The domestic producers alleged that Commerce failed to correct certain data input errors for Kejriwal, and challenged the formula used to determine Kajaria’s credit expenses on a transaction. The domestic producers also urged that Commerce failed to investigate a possible relationship between RSI and a confidential entity to determine whether USP should be calculated on the basis of purchase price or the exporter’s sales price. The domestic producers withdrew these assignments of error at oral argument. These parts of the action are affirmed. 5. ISSUES FOR WHICH DEFENDANT CONSENTS TO REMAND In its final determination, Commerce stated that it accounted for a rebate of the excise duty drawback by adding a duty drawback to the United States Price (USP) pursuant to 19 U.S.C. § 1677a(d)(l)(B) (1982), which provides for an upward adjustment to USP for customs duties that are rebated or uncollected by reason of exportation. 51 Fed.Reg. at 9,487. The record discloses that Commerce also deducted an amount for the excise duty drawback from each respondent’s foreign market value (FMV). Conf.R. 65-69. The plaintiffs assigned as error Commerce’s counting of the same taxes as both a duty drawback adjustment to USP and a reduction in material costs in the constructed FMV. In Serampore Indus. v. United States, 11 CIT —, 675 F.Supp. 1354, 1357 (1987), this Court remanded this issue to Commerce for recalculation as to Serampore only. Consistent with Serampore, Commerce asks this Court to remand this issue for recalculations as to RSI, Kejriwal, and Kajaria. This part of the action is remanded. The domestic producers also assign as error Commerce’s failure to make an adjustment for" }, { "docid": "6070896", "title": "", "text": "members of the association filed a petition with Commerce alleging that iron construction castings from India were being sold in the United States at LTFV. Certain Iron Construction Castings From India; Initiation of Antidumping Duty Investigation, 50 Fed.Reg. 24,014 (June 7, 1985). Commerce presented questionnaires to Serampore and three other Indian companies under investigation. Serampore claimed an adjustment for indirect taxes paid on items physically incorporated into the final products but refunded upon export by means of a cash compensatory support lump sum payment. Serampore also claimed an adjustment for drawback upon export of excise duty paid on the raw materials used to produce the finished castings. Serampore further claimed an upward adjustment of its United States price (USP) for the deposit of estimated countervailing duties on heavy iron castings entered during the period of investigation. In its preliminary determination of LTFV sales, Commerce made upward adjustments to Serampore’s USP for the cash compensatory support payment, the excise duty drawback, and the deposits of estimated countervailing duties. Iron Construction Castings From India; Preliminary Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 43,595 (Oct. 28, 1985). Commerce verified Serampore’s initial and supplemental questionnaire responses and found that Serampore received a 5% cash compensatory support payment for refund of indirect taxes upon export of heavy castings and a 10% cash compensatory support payment for certain light castings. Commerce also verified that Seram-pore received a drawback of excise duty on iron castings exported to the United States. Commerce determined that the prices Ser-ampore paid for pig iron included excise duty, octroi (border tax) and sales taxes. Citing Serampore’s recordkeeping, Commerce did not isolate taxes on paint and packing materials. In its final determination of sales at LTFV, Commerce found the following weighted-average dumping margins: Manufacturers/sellers/exporters Weighted-average margin percentage RSI (excluded) . 0 Kejriwal (de minimis) (excluded) 0.39 Serampore . 0.90 Kajaria (de minimis) (excluded) . 0.03 All others . 0.90 51 Fed.Reg. at 9490. In calculating Serampore’s dumping margin, Commerce did not add the cash compensatory support payment to USP. Commerce deducted from foreign market value some of the indirect taxes" }, { "docid": "8437831", "title": "", "text": "MEMORANDUM OPINION AND ORDER DiCARLO, Judge: The International Trade Administration of the United States Department of Commerce (Commerce) investigated four exporters of iron construction castings from India and determined that one exporter was dumping merchandise, that one exporter was not dumping, and that two other exporters were dumping at only de minim-is levels. Certain Iron Construction Castings from India; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9,486 (Mar. 19,1986). The Indian exporter found to be dumping challenged that finding in Serampore Indus. v. United States, 11 CIT —, 675 F.Supp. 1354 (1987). In this action United States producers of iron construction castings challenge Commerce’s other findings of zero and de minimis dumping margins. This Court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2) (Supp. IV 1986) and 28 U.S.C. § 1581(c) (1982). Plaintiffs move under Rule 56.1 of the Rules of this Court for judgment on the agency record and ask the Court to remand to Commerce for certain recalculations. Commerce concedes that it erred in making some of the challenged calculations and asks the Court to remand in part. The Court affirms in part and remands in part. Background The Municipal Castings Fair Trade Council and fifteen domestic producers of iron construction castings filed a petition with Commerce under 19 U.S.C. § 1673a(b) (1982) and 19 C.F.R. § 353.36 (1985), alleging that iron construction castings from India are being sold in the United States at less than fair value, and that these imports are materially injuring or threatening material injury to a United States industry. Commerce selected four Indian exporters of iron construction castings to be the respondents in this action: RSI India Pvt. Ltd. (RSI), Kejriwal Iron & Steel Works (Kejriwal), Kajaria Castings Pvt. Ltd. (Kajaria), and Serampore Industries Pvt. Ltd. (Serampore). Iron Construction Castings From India: Preliminary Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 43,595, 43,595-96 (Oct. 28, 1985). In its final determination of sales at less than fair value, Commerce found a zero percent dumping margin for RSI, a 0.39 percent margin for Kejriwal, and a 0.03 percent margin" }, { "docid": "18850376", "title": "", "text": "States. Certain Iron Construction Castings From India; Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 9486 (Mar. 19, 1986). The antidumping duty order was published on May 9, 1986. Antidumping Duty Order; Iron Construction Castings From India, 51 Fed. Reg. 17,221 (May 9, 1986). Fifteen domestic producers of iron construction castings challenged the exclusion from the dumping order of three Indian exporters — RSI, Kejriwal, and Kajaria. This litigation did not affect the exclusion of RSI or Kajaria, but did result in an affirmative dumping margin of 2.93 percent for Kejriwal. Alhambra Foundry Co., Ltd. v. United States, 12 CIT 343, 685 F. Supp. 1252, and 12 CIT 1110, 701 F. Supp. 221 (1988). In a separate action, Serampore Industries and the Engineering Export Promotion Council of India challenged the affirmative findings for Serampore and the \"all others.” This litigation ultimately resulted in Serampore’s exclusion from the dumping order because its dumping margin of 0.487 percent was found to be de minimis. Serampore Indus. Pvt., Ltd. v. United States Dep’t of Commerce, 11 CIT 866, 675 F. Supp. 1354 (1987), 12 CIT 825, 696 F. Supp. 665 (1988), 13 CIT 117, 705 F. Supp. 602 (1989). As a result of the litigation in both Alhambra and Serampore, the \"all others” dumping margin shifted from Serampore’s rate, 51 Fed. Reg. 17,221, to a combination of Serampore’s and Kejriwal’s rates, Alhambra, 12 CIT at 1116, 701 F. Supp. at 225, and finally to Kejriwal’s rate alone. Serampore, 13 CIT at 119, 705 F. Supp. at 604. During litigation of Alhambra and Serampore, Commerce initiated two administrative reviews of the antidumping order on iron construction castings from India pursuant to timely requests under 19 U.S.C. § 1675(a) (1982 & Supp. V 1987). The first administrative review covers all entries of Indian iron castings, except those exported by the three companies excluded by the antidumping order, during the period of October 28, 1985 to April 30, 1987. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 53 Fed. Reg. 23,330 (June 19, 1987). The second covers all entries of Indian iron" }, { "docid": "8437856", "title": "", "text": "de minim-is determinations for Kejriwal and Kajaria. If the other recalculations upon remand result in dumping margins which are no longer de minimis, the reasons behind the de minimis determinations for Kejriwal and Kajaria will be moot. If the margins remain de minimis, Commerce is ordered to explain the reasons for that determination as part of the remand proceedings. 3.ALLEGED COMPUTATIONAL ERRORS a. Kejriwal’s Commission The domestic producers assert that Kejriwal reported a commission on sales to “Customer A,” and argue that Commerce erred in not deducting this commission on all sales to “Customer A.” Conf.R. 1486 (at line 102), 1496 (at line 191). The record discloses that no adjustment to “Customer A” was necessary because the commission was paid to “Customer F” and “Customer G.” R. 1396, Conf.R. 1320. Commerce accordingly made adjustments on United States sales to “Customer F” and “Customer G.” Conf.R. 1471-74. This part of the action is affirmed. b. Kejriwal’s Inspection Charges The domestic producers argue that Commerce erred in not deducting an inspection charge from eleven sales of grates and frames. Commerce verified the existence of the inspection charge by examining its existence on sample sales. R. 1394, Conf.R. 1318. Commerce made no adjustment for inspection charges on the challenged eleven sales because Kejriwal did not report these charges for the eleven sales, which were not part of the sample. The record supports the conclusion that Commerce only made adjustments when inspection charges were incurred. Conf.R. 440 (at lines 37-47). This part of the action is affirmed. 4. WITHDRAWN CLAIMS The domestic producers alleged that Commerce failed to correct certain data input errors for Kejriwal, and challenged the formula used to determine Kajaria’s credit expenses on a transaction. The domestic producers also urged that Commerce failed to investigate a possible relationship between RSI and a confidential entity to determine whether USP should be calculated on the basis of purchase price or the exporter’s sales price. The domestic producers withdrew these assignments of error at oral argument. These parts of the action are affirmed. 5. ISSUES FOR WHICH DEFENDANT CONSENTS TO REMAND In its final" }, { "docid": "18850380", "title": "", "text": "published notice of its determination upon remand in Alhambra, which set a dumping margin for Kejriwal. Certain Iron Construction Castings From India; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order in Accordance With Decision Upon Remand, 55 Fed. Reg. 11,989 (Mar. 23, 1989). Kejriwal then filed an action in this Court on April 3, 1989 to contest the finding of dumping against it. Kejriwal Iron and Steel Works, Ltd. v. United States, Court No. 89-04-00172. On April 28, 1989, the Indian exporters filed an action in this Court alleging that the original dumping order is void ab initio as a result of the Serampore litigation and thus no valid underlying order exists on which to base administrative reviews until March 23, 1989, when Commerce published notice of the dumping margin for Kejriwal. The complaint seeks a declaratory judgment that the pending reviews are invalid and therefore unlawful, and an injunction against continuing the reviews. On May 1, 1989, Commerce published its determination upon remand in Serampore that Serampore should be excluded from the an-tidumping duty order on iron castings from India. Certain Iron Construction Castings From India; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order in Accordance With Decision Upon Remand, 54 Fed. Reg. 18,562 (May 1, 1989). During oral argument, the Court was also informed that a third administrative review based on the allegedly invalid order has now been requested and may soon be initiated. Discussion I. Motion To Dismiss: The Indian exporters allege that the Court has jurisdiction under 28 U.S.C. § 1581(i) (1982). This is the residual jurisdiction of the Court, which may be invoked as a basis for subject matter jurisdiction where another subsection of section 1581 is unavailable or the remedy provided by the other subsection is \"manifestly inadequate.” National Corn Growers’ Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988); Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 108 S. Ct. 773 (1988). Defendants argue that the action should be dismissed because the plaintiffs" }, { "docid": "8437855", "title": "", "text": "Carlisle Tire & Rubber Co. v. United States, 10 CIT —, 634 F.Supp. 419, 422-25 (1986). Commerce has since promulgated its rules regarding de minimis margins. See Antidumping and Countervailing Duties; De Minimis Dumping Margins and De Minimis Subsidies, 52 Fed.Reg. 30,660 (Aug. 17, 1987) (regulations to be codified at 19 C.F.R. § 353.24). These rules are not retroactive to Commerce’s determination of March 19, 1986, or otherwise control the outcome of the determination now before the Court. Independent of these newly-promulgated rules, Commerce may determine that a par ticular margin is de minimis if it supported by substantial evidence on the record and is otherwise in accordance with law within the meaning of 19 U.S.C. § 1516a(b)(2)(B) (1982). Washington Red Raspberry Comm’n v. United States, 11 CIT —, 670 F.Supp. 1004, 1005, appeal filed, No. 88-1107/1070 (Fed.Cir. Dec. 4, 1987). Pursuant to this Court’s decision in Carlisle Tire & Rubber Co., the defendant asks the Court to remand this part of the action for an explanation on the record of the reasons behind Commerce’s de minim-is determinations for Kejriwal and Kajaria. If the other recalculations upon remand result in dumping margins which are no longer de minimis, the reasons behind the de minimis determinations for Kejriwal and Kajaria will be moot. If the margins remain de minimis, Commerce is ordered to explain the reasons for that determination as part of the remand proceedings. 3.ALLEGED COMPUTATIONAL ERRORS a. Kejriwal’s Commission The domestic producers assert that Kejriwal reported a commission on sales to “Customer A,” and argue that Commerce erred in not deducting this commission on all sales to “Customer A.” Conf.R. 1486 (at line 102), 1496 (at line 191). The record discloses that no adjustment to “Customer A” was necessary because the commission was paid to “Customer F” and “Customer G.” R. 1396, Conf.R. 1320. Commerce accordingly made adjustments on United States sales to “Customer F” and “Customer G.” Conf.R. 1471-74. This part of the action is affirmed. b. Kejriwal’s Inspection Charges The domestic producers argue that Commerce erred in not deducting an inspection charge from eleven sales of grates" }, { "docid": "8437859", "title": "", "text": "physical difference in merchandise. During verification, Commerce discovered that at least one of the respondents sold castings with nuts and bolts. R. 1429. The domestic producers assert that the addition of nuts and bolts increases the cost of the merchandise, Plaintiffs’ Memorandum in Support of Motion for Judgment on the Administrative Record, at 36-37, and argue that disregarding the physical difference in material costs in constructing FMV is inconsistent with the anti-dumping law, Commerce’s regulations, and Commerce’s prior practice. See 19 U.S.C. § 1677b(a)(4)(C) (1982); 19 C.F.R. § 353.16 (1986). At oral argument the defendant agreed to make the requested recalculation upon remand. This part of the action is remanded. The domestic producers challenge the inclusion in Commerce’s final analysis of one of RSI’s reported United States sales because that sale had been cancelled, and assert that Commerce improperly calculated certain United States selling and movement expenses for RSI. The domestic producers also assert that Commerce verified that a certain transaction involved the sale of light castings, but that Commerce mistakenly classified these castings as heavy castings on line 107 of Commerce’s final computer printout. Conf.R. 1254, 1591. At oral argument the defendant consented to a remand on these issues to correct the challenged figures. These parts of the action are remanded. The domestic producers also contest Commerce’s treatment of indirect taxes rebated to Kejriwal under the Cash Compensatory Support (CCS) program. R. 1394-95. Commerce added both the CCS payment and the excise duty drawback to USP. Commerce concedes that an upward adjustment to USP was improper, and asks the Court to remand. This part of the action is remanded. 6. RELIEF BEYOND THE COMPLAINT AND PRAYER FOR RELIEF The domestic producers assert that during verification in India, Commerce determined that Serampore had incorrectly reported the number of pieces involved in certain transactions. Defendant informed the Court at argument that correction of this error would require sending another verification team to India. The Court does not reach this contention against Serampore in the absence of defendant’s consent. The domestic producers’ complaint is expressly limited to challenging Commerce’s final determinations for" }, { "docid": "8437832", "title": "", "text": "calculations and asks the Court to remand in part. The Court affirms in part and remands in part. Background The Municipal Castings Fair Trade Council and fifteen domestic producers of iron construction castings filed a petition with Commerce under 19 U.S.C. § 1673a(b) (1982) and 19 C.F.R. § 353.36 (1985), alleging that iron construction castings from India are being sold in the United States at less than fair value, and that these imports are materially injuring or threatening material injury to a United States industry. Commerce selected four Indian exporters of iron construction castings to be the respondents in this action: RSI India Pvt. Ltd. (RSI), Kejriwal Iron & Steel Works (Kejriwal), Kajaria Castings Pvt. Ltd. (Kajaria), and Serampore Industries Pvt. Ltd. (Serampore). Iron Construction Castings From India: Preliminary Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 43,595, 43,595-96 (Oct. 28, 1985). In its final determination of sales at less than fair value, Commerce found a zero percent dumping margin for RSI, a 0.39 percent margin for Kejriwal, and a 0.03 percent margin for Kajaria. 51 Fed.Reg. at 9,490. In the final determination and subsequent antidumping duty order, Commerce excluded the results for Kejriwal and Kajaria as having only de minimis margins of dumping. Id.; Antidumping Duty Order; Iron Construction Castings From India, 51 Fed.Reg. 17,221 (May 9, 1986). No antidumping duties were assessed against RSI, Kejriwal or Kajaria. The domestic producers filed an action in this Court to challenge Commerce’s results for RSI, Kejriwal and Kajaria. Complaint a at 4. Scope of Review In reviewing final Commerce determinations in antidumping duty investigations, the Court will hold unlawful those determinations found “to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S. C. § 1516a(b)(l)(B) (1982); Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465, 467 (Fed. Cir.1988). Under the substantial evidence standard for review of agency determinations, the Court will affirm the agency’s findings if they are supported in the record by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." }, { "docid": "8437833", "title": "", "text": "for Kajaria. 51 Fed.Reg. at 9,490. In the final determination and subsequent antidumping duty order, Commerce excluded the results for Kejriwal and Kajaria as having only de minimis margins of dumping. Id.; Antidumping Duty Order; Iron Construction Castings From India, 51 Fed.Reg. 17,221 (May 9, 1986). No antidumping duties were assessed against RSI, Kejriwal or Kajaria. The domestic producers filed an action in this Court to challenge Commerce’s results for RSI, Kejriwal and Kajaria. Complaint a at 4. Scope of Review In reviewing final Commerce determinations in antidumping duty investigations, the Court will hold unlawful those determinations found “to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S. C. § 1516a(b)(l)(B) (1982); Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465, 467 (Fed. Cir.1988). Under the substantial evidence standard for review of agency determinations, the Court will affirm the agency’s findings if they are supported in the record by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2015, 90 L.Ed.2d 445 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). The Court must also accord substantial weight to an agency’s interpretation of a statute it administers. American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). An agency’s statutory interpretation need not be the only reasonable interpretation, or the one which the Court views as the most reasonable. ICC Indus. v. United States, 812 F.2d 694, 699 (Fed.Cir. 1987); Consumer Prods. Div., SCM Corp. v. Silver Reed America, 3 Fed.Cir. (T) 83, 90, 753 F.2d 1033, 1039 (1985). However, “[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986). Discussion The domestic producers assert that Commerce’s final antidumping" }, { "docid": "18850379", "title": "", "text": "iron construction castings from India, but rather altered the coverage of the order with respect to Serampore and Kejriwal. They argued that the status of the reviews with respect to all other companies remains unchanged. On March 17, 1989, the Indian exporters replied that the \"order” with respect to Kejriwal can only cover entries subsequent to the date of the order when it is issued. They argued that while there will be an outstanding order as of the date the order against Kejriwal is published, there will no longer be an \"outstanding” order having effect prior to that date on which to predicate reviews. * * * The Court’s determination with respect to Serampore does, indeed, extinguish the order issued in 1986 and the Kejriwal order cannot review the order. [Commerce]is thus without legal authority to review periods prior to issuance of a new order covering Kejriwal. Accordingly, the reviews now taking place should be terminated. Commerce did not terminate the reviews or otherwise respond to the Indian exporters’ letters. On March 23, 1989, Commerce published notice of its determination upon remand in Alhambra, which set a dumping margin for Kejriwal. Certain Iron Construction Castings From India; Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Order in Accordance With Decision Upon Remand, 55 Fed. Reg. 11,989 (Mar. 23, 1989). Kejriwal then filed an action in this Court on April 3, 1989 to contest the finding of dumping against it. Kejriwal Iron and Steel Works, Ltd. v. United States, Court No. 89-04-00172. On April 28, 1989, the Indian exporters filed an action in this Court alleging that the original dumping order is void ab initio as a result of the Serampore litigation and thus no valid underlying order exists on which to base administrative reviews until March 23, 1989, when Commerce published notice of the dumping margin for Kejriwal. The complaint seeks a declaratory judgment that the pending reviews are invalid and therefore unlawful, and an injunction against continuing the reviews. On May 1, 1989, Commerce published its determination upon remand in Serampore that Serampore should" }, { "docid": "6070897", "title": "", "text": "Sales at Less Than Fair Value, 50 Fed.Reg. 43,595 (Oct. 28, 1985). Commerce verified Serampore’s initial and supplemental questionnaire responses and found that Serampore received a 5% cash compensatory support payment for refund of indirect taxes upon export of heavy castings and a 10% cash compensatory support payment for certain light castings. Commerce also verified that Seram-pore received a drawback of excise duty on iron castings exported to the United States. Commerce determined that the prices Ser-ampore paid for pig iron included excise duty, octroi (border tax) and sales taxes. Citing Serampore’s recordkeeping, Commerce did not isolate taxes on paint and packing materials. In its final determination of sales at LTFV, Commerce found the following weighted-average dumping margins: Manufacturers/sellers/exporters Weighted-average margin percentage RSI (excluded) . 0 Kejriwal (de minimis) (excluded) 0.39 Serampore . 0.90 Kajaria (de minimis) (excluded) . 0.03 All others . 0.90 51 Fed.Reg. at 9490. In calculating Serampore’s dumping margin, Commerce did not add the cash compensatory support payment to USP. Commerce deducted from foreign market value some of the indirect taxes refunded upon export, but made no adjustments for refunds of the central sales tax. Commerce also added duty drawback to Serampore’s USP, although Commerce had verified that the drawback was of excise duty and not import duty. Although Commerce had added deposits of estimated countervailing duties to Ser-ampore’s USP in its preliminary determination, Commerce did not add deposits of estimated countervailing duties to USP in its final determination. With respect to Serampore’s weighted average dumping margin, Commerce refused to use Serampore’s sales at fair value to offset its sales at LTFV. With respect to the weighted average margin for “all other” companies, Commerce disregarded margins of the other companies investigated that were found not to be dumping or dumping only at de min-imis rates, and applied the margin found for Serampore alone to the “all other” rate. Commerce has moved to strike two paragraphs of plaintiffs’ reply brief and an affidavit of plaintiffs’ counsel attached to that brief. The Court reserves ruling on the motion because the subject challenged in plaintiffs’ reply brief is remanded." }, { "docid": "8437863", "title": "", "text": "determination made by an intervenor when the challenge is made subsequent to the thirty day deadline under 19 U.S.C. § 1516a(a)(2) for instituting an action. National Ass’n of Mirror Mfgs. v. United States, 11 CIT —, 670 F.Supp. 1013 (1987); Washington Red Raspberry Comm’n v. United States, 11 CIT —, 657 F.Supp. 537, 545-46 (1987); East Chilliwack Fruit Growers Cooperative v. United States, 11 CIT —, 655 F.Supp. 499, 504-05 (1987); Al Tech Specialty Steel Corp. v. United States, 10 CIT —, 633 F.Supp. 1376, 1380 (1986); Fuji Elec. Co. v. United States, 7 CIT 247, 595 F.Supp. 1152, appeal dismissed, No. 84-1639 (Fed.Cir.1984); Nakajima All Co. v. United States, 2 CIT 170 (1981) [available on WESTLAW, 1981 WL 2473]. The Indian exporters did not commence an action to challenge Commerce’s findings as to RSI, Kejriwal, and Kajaria. They raised the issue concerning the recalculation of the tax incidence incurred on their castings for the first time in response to plaintiffs’ motion for judgment upon the agency record. Under the cases and statutory framework, the Court must deny the Indian exporters’ motion. However, if remand results from the other issues lead to finding a level of dumping which warrants imposition of an antidumping duty, then RSI, Kejriwal, and Kajaria will suffer from a legally cognizable injury which would allow them to institute an action to contest the remand results pursuant to 28 U.S.C. § 1581(c) (1982), as provided in 19 U.S.C. § 1516a. See Al Tech Specialty Steel Corp., 10 CIT —, 633 F.Supp. 1376, 1380 (1986). Conclusion This action is remanded to Commerce to make the appropriate explanations on the record or recalculations within 30 days. The domestic producers are granted 15 days after receipt of the remand results in which to file a brief. Defendant-intervenors and Commerce are each granted 10 days after receipt of the domestic producers’ brief in which to file a reply." }, { "docid": "8437858", "title": "", "text": "determination, Commerce stated that it accounted for a rebate of the excise duty drawback by adding a duty drawback to the United States Price (USP) pursuant to 19 U.S.C. § 1677a(d)(l)(B) (1982), which provides for an upward adjustment to USP for customs duties that are rebated or uncollected by reason of exportation. 51 Fed.Reg. at 9,487. The record discloses that Commerce also deducted an amount for the excise duty drawback from each respondent’s foreign market value (FMV). Conf.R. 65-69. The plaintiffs assigned as error Commerce’s counting of the same taxes as both a duty drawback adjustment to USP and a reduction in material costs in the constructed FMV. In Serampore Indus. v. United States, 11 CIT —, 675 F.Supp. 1354, 1357 (1987), this Court remanded this issue to Commerce for recalculation as to Serampore only. Consistent with Serampore, Commerce asks this Court to remand this issue for recalculations as to RSI, Kejriwal, and Kajaria. This part of the action is remanded. The domestic producers also assign as error Commerce’s failure to make an adjustment for physical difference in merchandise. During verification, Commerce discovered that at least one of the respondents sold castings with nuts and bolts. R. 1429. The domestic producers assert that the addition of nuts and bolts increases the cost of the merchandise, Plaintiffs’ Memorandum in Support of Motion for Judgment on the Administrative Record, at 36-37, and argue that disregarding the physical difference in material costs in constructing FMV is inconsistent with the anti-dumping law, Commerce’s regulations, and Commerce’s prior practice. See 19 U.S.C. § 1677b(a)(4)(C) (1982); 19 C.F.R. § 353.16 (1986). At oral argument the defendant agreed to make the requested recalculation upon remand. This part of the action is remanded. The domestic producers challenge the inclusion in Commerce’s final analysis of one of RSI’s reported United States sales because that sale had been cancelled, and assert that Commerce improperly calculated certain United States selling and movement expenses for RSI. The domestic producers also assert that Commerce verified that a certain transaction involved the sale of light castings, but that Commerce mistakenly classified these castings as" } ]

[ { "docid": "513111", "title": "", "text": "Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 550-51 (Fed.Cir.1990). To some extent, this apparent confusion arises from a separate requirement of patent law to test an invention for utility, i.e., to show that it works for its intended purpose. See Scott v. Finney, 34 F.3d 1058, 1061 (Fed.Cir.1994). This court has noted the potential overlap of utility and experimental use testing. EZ Dock, 276 F.3d at 1352. As suggested by their different origins and purposes, however, utility testing (reduction to practice) and experimental use testing are not synonymous. Testing to reduce an invention to practice shows completion of an invention and establishes its utility. See, e.g., Holmwood v. Sugavanam, 948 F.2d 1236 (Fed.Cir.1991). The focus is on whether the totality of the testing at the relevant time period was sufficient to prove an actual reduction to practice of the invention. See Scott, 34 F.3d at 1061-62. Experimental testing, on the other hand, negates evidence that an inventor has fatally postponed filing beyond a bar date. See City of Elizabeth, 97 U.S. at 126. Here, the focus is on whether the specific testing in question was necessary to reduce the claimed invention to practice. That is, after the invention is reduced to practice, further testing will not qualify as experimental use for purposes of negating a bar under § 102(b). See Continental Plastic Containers v. Owens Brockway Plastic Prods., 141 F.3d 1073, 1079 (Fed.Cir.1998) (“The policy behind experimental use negation is to give the inventor an opportunity to reduce the invention to practice.... Thus, experimental use can not occur after a reduction to practice”) (citations omitted). Due to these different origins and purposes, the narrower experimental use negation does not extend beyond perfecting claimed features. In any event, even the cases above that acknowledge experimentation on features beyond those expressly claimed remain faithful to these strict limits of the experimental use negation. Each of those cases permitted testing to negate the bar when the experimentation improves or verifies a feature inherent in the express claims of the invention. In Manville, for example, the claimed invention covered a light" } ]

[ { "docid": "22959082", "title": "", "text": "pose little difficulty. Gumanis contends that the trial judge erred in allowing the jury to award punitive damages. The objection is without merit. The trial judge instructed the jury that it could award punitive damages if it found that the defendants had acted “maliciously”, “wantonly”, or “oppressively”. The instruction was proper as a matter of law, and there was ample evidence, some of it recited in our statement of facts above, to support a jury finding that the defendants’ acts were “malicious”, “wanton”, or “oppressive”. Gumanis argues that Donaldson’s failure to receive treatment was a result largely of his own refusal, on religious grounds, to accept certain forms of treatment, particularly medication and electroshock treatments, and his failure to petition for restoration of his competency under Fla. Statutes § 394.22, F.S.A. Neither argument has any merit. As for Donaldson’s refusal of forms of treatment, the trial judge instructed the jury: “You are instructed that if Plaintiff through his own actions contributed to the withholding of a particular form of treatment, that Plaintiff is not entitled to collect compensation from the Defendants for the failure to give such treatment during the particular period or periods Plaintiff refused such treatment.” Gumanis did not at the trial and does not now object to this instruction. We find no reason to believe that either the verdict or the award of damages was based upon the failure to give Donaldson those forms of treatment he refused. As for his failure to petition for a restoration of his competency, the statute in question does not permit a person adjudged incompetent to petition on his own for a restoration of his competency; the petition may be instituted only by a parent, guardian, or “next friend”. Donaldson cannot be held accountable for not doing what he was legally unable to do. Finally, Gumanis contends that “the cumulative effect of certain errors and irregularities during the course of the trial was such as to significantly undermine the fairness of the trial itself”. We have considered these alleged errors too, and find no merit to any one of them. We" }, { "docid": "14626254", "title": "", "text": "as to that aspect of the invention, the specification clearly and strongly warns that such an embodiment would not wet well. In particular, the specification warns that silicon content above 0.5% in the aluminum coating causes coating problems. Such a statement discourages experimentation with coatings having more than 0.5% silicon, undue or otherwise. It tells the public that higher amounts of silicon will not work. Nothing further need be said about the matter. Moreover, we disagree with AK Steel’s contention that Sollac failed to submit evidence that undue experimentation would be required to enable practice of the claims. Sollac presented documentary and testimonial evidence from AK Steel that despite its desire to utilize a Type 1 aluminum coating, it was unable to do so at the time of the effective filing date. AK Steel, 234 F.Supp.2d at 782-83. Furthermore, as explained above, the specification’s teaching is itself evidence that at least a significant amount of experimentation would have been necessary to practice the claimed invention utilizing Type 1 aluminum. In summary, given the specification’s teaching away from the subject matter that was eventually claimed and AK Steel’s own failures to make and use the later claimed invention at the time of the application, the district court correctly concluded that there was no genuine issue of material fact relating to undue experimentation as it relates to enablement. Finally, we dispel the notion that the failure of the PTO to issue an enablement rejection automatically creates an “especially weighty presumption” of compliance with 35 U.S.C. § 112. AK Steel cites language in Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1574-75 (Fed.Cir.1993), to that effect. However, whether a patent complies with the enablement requirement depends upon a factually intensive inquiry regarding the amount of experimentation required, see Wands, 858 F.2d at 737, an issue to be evaluated on a case-by-case basis. Indeed, the presumption is far from determinative, and we have on occasion invalidated patent claims as not having been enabled, despite the PTO’s having allowed those claims. Kg., Genentech, 108 F.3d at 1368. This is another such case. The" }, { "docid": "11168131", "title": "", "text": "intended. Mr. Leighty testified that, in light of their lack of resources, it was EPC’s hope that Mack Trucks would assist them in this testing process. Mr. Leighty further testified as to his belief that the prototype given to Mack Trucks did not embody all of the features that were later included in the ’456 patent. And finally, Mr. Leighty testified that, despite the optimistic projections in the letter, it was not until August 1977 that the gauge had been sufficiently tested that it could be offered for sale. EPC contends that this latter date is the date at which the invention was reduced to practice and any events prior to August 1977, including the interaction and correspondence with Mack Trucks, were merely part of the experimental use phase. The Court agrees that this is a reasonable characterization of the evidence, and as such is sufficient to warrant denial of Donaldson’s motion for summary judgment. See Pfaff, 525 U.S. at 64, 119 S.Ct. 304 (“[A]n inventor who seeks to perfect his discovery may conduct extensive testing without losing his right to obtain a patent for his invention — even if such testing occurs in the public eye.”). That being said, however, the Court disagrees with EPC’s contention that the record as it stands necessitates summary judgment in its favor. The precatory language used by Mr. Leighty reasonably suggests that while EPC would be interested in Mack Trucks’ feedback regarding the prototype, EPC was in no way relying upon Mack Trucks as an integral part of any testing process. Mr. Leighty plainly says as much in paragraph 8. Viewed in that light, the request for Mack Trucks’ testing assistance could be construed as a sales ploy, similar to a suggestion by an auto dealer that a valued or sought-after customer test drive a new car. The predominant purpose of the request is not to acquire information about the tested product, but rather to get the customer to try it in the expectation that he or she will then be inclined to purchase it. There is nothing in the letter to suggest" }, { "docid": "16251329", "title": "", "text": "Patent Misuse (docket no. 316) is denied, but evidence of “patent misuse” is limited to the two incidences of “misuse” upon which Donaldson now relies. 13. EPC’s March 26, 2004, Motion In Limine To Preclude Donaldson From Presenting Any Theory Of Non-Infringement Based On Separate Patentability (docket no. 317) is denied. 14. Donaldson’s March 26, 2004, Motion In Limine To Exclude Videotape (docket no. 318) is denied. The videotape will be played by the court during jury selection as background to the litigation. The parties shall submit proposed jury instructions — and if at all possible, a single stipulated instruction — that, inter alia, advises the jury of the background use of the videotape, the fact that the videotape is not evidence, and that the jurors will be required to decide the case on the basis of the evidence presented and the law as stated in the court’s instructions. 15. Donaldson’s March 26, 2004, Motion In Limine On Admissibility Of January 20, 1998, Letter From John Held (docket no. 319) is granted. The court agrees with the parties that the January 20, 1998, letter is not subject to attorney-client privilege and is otherwise admissible. 16. Donaldson’s March 26, 2004, Motion In Limine To Exclude Bruce Burton’s March 1, 2004, Expert Report And Other Untimely Expert Disclosures (docket no. 320) is denied. 17. EPC’s March 31, 2004, Motion To Strike Affidavit Of James F. Nieberding And To Preclude Testimony Of Any New Economic Expert (docket no. 326) is denied. IT IS SO ORDERED. . In Dethmers, this court also quoted a portion of the Festo decision providing a “more detailed, but nevertheless succinct primer on prosecution history estoppel and its effect on the doctrine of equivalents.” See Dethmers Mfg. Co., 299 F.Supp.2d at 916 n. 2. Although “succinct,” the court will not repeat that entire quotation here. For present purposes, suffice it to say that \"[ejstoppel is a 'rule of patent construction' that ensures that claims are interpreted by reference to those that have been cancelled or rejected.' ” Festo, 535 U.S. at 733, 122 S.Ct. 1831 (quoting Schriber-Schroth Co. v." }, { "docid": "18789287", "title": "", "text": "brochures and memoranda in view of the precritical date preparation of 2,500 copies of the typewritten Inventory creates a prima facie case which was not rebutted. While experimental use of an invention prior to the critical date is not a bar, a review of the cases reveals that the underlying experimental purposes were clearly supported by objective evidence in the record. Curriculum Associates has not met its burden of showing that the board erred in not finding that the 2,500 typewritten copies were intended for experimental purposes, rather than for commercial marketing purposes. Brigance further argues that, because the Inventory is not commercially useful without the setting objectives feature which was not reduced to practice until after the critical date, the board erred in finding that the Inventory was commercially useful and was reduced to practice prior to the critical date. This contention misses the point of the section 102(b) bar. Even assuming arguendo that the Inventory was not commercially successful until after the setting objectives feature was reduced to practice, claims 1, 3-5, and 7 cover only the material that was offered for sale before the critical date. This court and its predecessors have stated that the experimental use exception does not apply to experiments performed with respect to nonclaimed features of an invention. Since the setting objectives feature is embodied solely by claim 8, and not by rejected claims 1, 3-5, and 7, whatever further testing and experimentation was contemplated did not relate to any of the features set forth in the rejected claims. Finally, Brigance contends that Curriculum Associates’ precritical date offerings of the Inventory for sale were made not primarily for profit, but were made solely for experimental purposes. Brigance, relying on Timely Products Corp. v. Arron, asserts that the precritical date sale offers were made for determining the commercial marketability of the Inventory, and that reduction to practice could not have occurred until after actual sales were made. The rationale underlying this assertion is that the Inventory would not be demonstrated as commercially marketable until educators displayed their satisfaction with the Inventory by submitting repeat" }, { "docid": "16251239", "title": "", "text": "patent under the doctrine of equivalents. EPC contends that Donaldson has conceded that separate patentability is not relevant to literal infringement. EPC contends that the Krisko patent is irrelevant to the infringement analysis, because, from the claims and file history of the Krisko patent, it is clear that there is no logical nexus between the disputed issues — i.e., whether or not the “locking fingers” of the NG Air Alert are substantially different from the “elongated locking member” of the ’456 patent — and the examiner’s analysis of the patentability of the Krisko patent. Moreover, EPC contends that introduction of evidence of the Krisko patent will only serve to confuse the jury into believing that the patent gives Donaldson the right to make the NG Air Alert, when all a patent gives the holder is the right to exclude others from practicing the invention. EPC contends that there is even more reason to exclude this evidence on grounds of confusion, where the examiner did not address the differences between the Krisko patent and the ’456 patent that are at issue here. Finally, EPC contends that evidence of the Krisko patent should be excluded, because of Donaldson’s fraud upon the PTO in making inadequate disclosures of the ’456 patent and the present litigation in the prosecution of the Krisko patent. Donaldson counters, first, that separate patentability is relevant to both literal in fringement and infringement under the doctrine of equivalents. Moreover, Donaldson argues that the examiner was informed of the ’456 patent during the course of the prosecution of the Krisko patent, considered that patent, and nevertheless concluded that the Krisko patent was novel and non-obvious. This indication of “substantial differences,” Donaldson argues, is relevant to infringement. Moreover, Donaldson argues that the Kris-ko patent is presumed valid and that EPC is making only unsupported allegations of inequitable conduct. Contrary to EPC’s contentions, Donaldson argues that the ’456 patent and the present litigation were fully disclosed to the examiner in the course of prosecution of the Krisko patent. In reply, EPC argues that separate pat-entability does not apply to literal infringement in" }, { "docid": "11168130", "title": "", "text": "the handmade prototype an accelerated test on a vehicle. As soon as it has proven itself, we would appreciate your mounting that same gauge directly on an engine so that it gets the ultimate vibration. [¶ 8] We are completing our own tests and expect to release for tooling within the next 80 to 60 days ... production 12 to 14 weeks after that. [¶ 9] We will keep in touch with you and in the meantime, if you discover anything in the tests that you think would be interesting to us, please let us know. EPC contends that the letter clearly shows that the prototype was still in the experimental stage and so had not been reduced to practice. It cites the plain language of the letter as well as deposition testimony by Mr. Leighty, in which he testified that neither EPC nor Mr. Nelson had the resources to independently test the prototype. According to EPC, without such testing it would be impossible to know if the gauge’s progressive lock-up mechanism actually worked as intended. Mr. Leighty testified that, in light of their lack of resources, it was EPC’s hope that Mack Trucks would assist them in this testing process. Mr. Leighty further testified as to his belief that the prototype given to Mack Trucks did not embody all of the features that were later included in the ’456 patent. And finally, Mr. Leighty testified that, despite the optimistic projections in the letter, it was not until August 1977 that the gauge had been sufficiently tested that it could be offered for sale. EPC contends that this latter date is the date at which the invention was reduced to practice and any events prior to August 1977, including the interaction and correspondence with Mack Trucks, were merely part of the experimental use phase. The Court agrees that this is a reasonable characterization of the evidence, and as such is sufficient to warrant denial of Donaldson’s motion for summary judgment. See Pfaff, 525 U.S. at 64, 119 S.Ct. 304 (“[A]n inventor who seeks to perfect his discovery may conduct extensive" }, { "docid": "11168125", "title": "", "text": "he and Mr. Nelson gave to a Mack Trucks engineer. The amended interrogatory response was submitted in August 2000, after Donaldson’s summary judgment motion raised the issue of on-sale bar, and recharacterizes the April 1977 events as part of the testing period. (See doc. no. 98, exh. A, p. 3-4). In it, EPC avers that although conception of the invention embodied in the ’456 patent proceeded April 27, 1977, the invention was not reduced to practice until late summer or fall of that year, “following testing that eventually confirmed that the invention would perform as intended.” (Id.). EPC contends that its amended answer relies on no new facts and merely corrects a premature and incorrect characterization of the facts that were in evidence. Donaldson argues that EPC’s amended answer is an unfair last-minute attempt to create a triable issue as to on-sale bar and contradicts deposition testimony of EPC’s President, Peter Simer, wherein he averred that “the factual statements contained in [the interrogatory responses] are true and accurate.” Rule 36(b) of the Federal Rules of Civil Procedure directs that “the court may permit withdrawal or amendment [of an admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.” Fed.R.Civ.P. 36(b); FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir.1994) (considering effect on litigation and prejudice to resisting party in determining whether to allow amendment of admissions). After reviewing the parties’ numerous briefs on the issue, the Court concludes that Donaldson’s motion to strike EPC’s amended interrogatory answer number 4 should be denied. In so doing, the Court notes that EPC initially responded to the interrogatory in August, 1999, relatively early in the discovery process, and expressly based its response on its “investigation to date.” (Exh. 1 to Sullivan aff., doc. no. 109). Potentially contra dictory evidence — namely, the April, 1977 letter and Mr. Leighty’s deposition testimony — was in the record as of December 1999 at" }, { "docid": "15232707", "title": "", "text": "terms “prophylaxis” and “treatment” are largely overlapping and that Lilly made no effort at trial to suggest that they required significantly different analysis under the written description or enablement requirements, there was no need to instruct the jury that it needed to conduct a separate invalidity analysis for each term. Any such instruction would simply have been confusing to the jury in light of the manner in which the case was tried. Finally, the instruction that Lilly sought was directed to the principle that section 112, paragraph 1, requires that the specification enable the full scope of the claim, not just a single embodiment or group of embodiments. See Liebel-Flarsheim Co. v. Medrad, Inc., 481 F.3d 1371, 1378-79 (Fed. Cir. 2007). The Court in fact gave such an instruction, directing the jury that “[t]o be valid, a patent must contain a description of the manner of making and using the invention that would enable a persons of skill in the art to make and use the full scope of the invention without undue experimentation. Lilly contends that claim 1 of the ’124 patent is invalid because the patent does not contain a sufficiently full and clear description of how to make and use the full scope of the invention. In order to invalidate the 124 patent for lack of enablement, Lilly must prove by clear and convincing evidence that the 124 patent would not have enabled such a person to make or use the full scope of the invention.” Dkt. No. 346, Trial Tr. 1428; see also id, Trial Tr. 1429. The principle to which Lilly’s proposed instruction was directed was thus already incorporated in the Court’s charge, although not with the specificity that Lilly requested. Thus, nothing barred Lilly fi’om making a specific argument to the jury as to non-enablement of prophylaxis in its closing argument, but Lilly chose not to do so. The Court therefore denies the motion for a new trial based on the failure to instruct as to the separate enablement of prophylaxis. B. The Court’s Failure to Instruct on Laws of Nature Lilly contends that" }, { "docid": "11168123", "title": "", "text": "by which a party can demonstrate that an invention was “ready for patenting” is “by proof of reduction to practice before the critical date.” Id. When an actual embodiment of all of the elements of the claimed invention has been built, the invention has been reduced to practice. See id. at 57 n. 2, 119 S.Ct. 304 (quoting Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 383, 48 S.Ct. 380, 72 L.Ed. 610 (1928) (“A machine is reduced to practice when it is assembled, adjusted and used. A manufacture is reduced to practice when it is completely manufactured.”)); RCA Corp. v. Data General Corp., 887 F.2d 1056, 1061 (Fed.Cir.1989) (“Experimental use, which means perfecting or completing an invention to the point of determining that it will work for its intended purpose, ends with an actual reduction to practice.”) (citations omitted). Evidence such as memoranda, drawings, correspondence and testimony of witnesses may be used to establish that the embodiment was in fact the claimed invention. See RCA Corp., 887 F.2d at 1060. If Donaldson can demonstrate that the ’456 patent was reduced to practice, it must then prove that the prototype was in public use, on sale, or offered for sale prior to June 19,1977. The Court concludes that the parties’ positions on this issue reflect a material factual dispute that cannot be resolved at summary judgment. Before elaborating on this decision, however, the Court must resolve a distinct but relevant dispute between the parties wherein Donaldson has moved this Court to strike an amended interrogatory response by EPC. (Doc. no. 97). A. Donaldson’s motion to strike EPC’s amended interrogatory response In early August, 1999, EPC responded to Donaldson’s interrogatory regarding the dates of conception and reduction to practice of the invention embodied in the ’456 patent. In its response, EPC admitted its belief that the ’456 patent was reduced to practice prior to April 27,1977. (See doc. no. 77, tab 28, at 3-4). EPC apparently based this response on a letter dated April 27, 1977, written by Ike Leighty wherein Mr. Leighty discusses a handmade prototype that" }, { "docid": "5212293", "title": "", "text": "the various experimental implants in pigs were not always successful, and that design changes were made after the patent application was filed. Edwards agrees that more developmental work was required at the time of filing. Co-inventor Knudsen wrote, in a contemporaneous report, that “questions such as size reduction, material and design optimization, and stent valve sterilization, remain unsolved,” and that “much more work had to be done before anybody ever even contemplated using this for a human.” Edwards’ expert witness Dr. Buller testified that at the time the patent application was filed, it was “a device to perform testing on” and “not a device to move in and treat patients.” The jury was instructed on the issue of enablement as follows: The Patent Laws require that the patent be sufficiently detailed to enable those skilled in the art to practice the invention. The purpose of this requirement is to ensure that the public, in exchange for the patent rights given to the inventor, obtains from the inventor a full disclosure of how to make and use the invention. If the inventors failed to provide an enabling disclosure, the patent is invalid. However, because descriptions in patents are addressed to those skilled in the art to which the invention pertains, an applicant for a patent need not expressly set forth in his specification subject matter which is commonly understood by persons skilled in the art. The enablement defense does not require an intent to withhold; all that is required is a failure to teach how to practice the full scope of the claimed invention. In other words, if a person of ordinary skill in the art could not make and use the invention disclosed in the patent without undue experimentation, the patent is invalid. However, some routine amount of experimentation to make and use the invention is allowable. The patent need not contain a working example if the invention is otherwise disclosed in such a manner that one skilled in the art to which the invention pertains will be able to practice it without an undue amount of experimentation. Final Jury" }, { "docid": "11168124", "title": "", "text": "Donaldson can demonstrate that the ’456 patent was reduced to practice, it must then prove that the prototype was in public use, on sale, or offered for sale prior to June 19,1977. The Court concludes that the parties’ positions on this issue reflect a material factual dispute that cannot be resolved at summary judgment. Before elaborating on this decision, however, the Court must resolve a distinct but relevant dispute between the parties wherein Donaldson has moved this Court to strike an amended interrogatory response by EPC. (Doc. no. 97). A. Donaldson’s motion to strike EPC’s amended interrogatory response In early August, 1999, EPC responded to Donaldson’s interrogatory regarding the dates of conception and reduction to practice of the invention embodied in the ’456 patent. In its response, EPC admitted its belief that the ’456 patent was reduced to practice prior to April 27,1977. (See doc. no. 77, tab 28, at 3-4). EPC apparently based this response on a letter dated April 27, 1977, written by Ike Leighty wherein Mr. Leighty discusses a handmade prototype that he and Mr. Nelson gave to a Mack Trucks engineer. The amended interrogatory response was submitted in August 2000, after Donaldson’s summary judgment motion raised the issue of on-sale bar, and recharacterizes the April 1977 events as part of the testing period. (See doc. no. 98, exh. A, p. 3-4). In it, EPC avers that although conception of the invention embodied in the ’456 patent proceeded April 27, 1977, the invention was not reduced to practice until late summer or fall of that year, “following testing that eventually confirmed that the invention would perform as intended.” (Id.). EPC contends that its amended answer relies on no new facts and merely corrects a premature and incorrect characterization of the facts that were in evidence. Donaldson argues that EPC’s amended answer is an unfair last-minute attempt to create a triable issue as to on-sale bar and contradicts deposition testimony of EPC’s President, Peter Simer, wherein he averred that “the factual statements contained in [the interrogatory responses] are true and accurate.” Rule 36(b) of the Federal Rules of" }, { "docid": "2496533", "title": "", "text": "Kazmer’s conclusory testimony to the contrary, which ignores the embodiment of the invention described by Figure 1, is thus insufficient to show failure of written description. 3. Enablement As the final argument of its cross-appeal, Koito contends that the '268 patent was not enabled because it failed to detail (1) Turn-Key’s formula for predetermining flow direction and (2) injection parameters and gate sizes. Patents are required to “teach those skilled in the art how to make and use the full scope of the claimed invention without ‘undue experimentation.’ ” Genentech Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1365 (Fed.Cir.1997). Because Koito produced no evidence that the trial and error required to practice the claimed invention would be unduly laborious or beyond the reach of one of ordinary skill in the art, we affirm the district court’s grant of Turn-Key’s JMOL on the issue of enablement. Koito argues that the '268 patent was not enabled because Turn-Key used a proprietary formula for achieving the claimed predetermined direction of flow in a mold cavity and yet did not disclose this formula in the patent. While this evidence may go to best mode, it does not demonstrate that any certain formula for achieving flow direction was required for one of ordinary skill in the art to practice the claimed invention or that undue experimentation would be required for one of ordinary skill in the art to predetermine flow direction through trial and error. Without such evidence, the jury’s verdict of lack of enablement is not sufficiently supported. Koito also argues on appeal that certain details used by Turn-Key, such as injection parameters and gate size, were necessary for one of skill in the art to practice the claimed invention without undue experimentation. We again find that Koito failed to put forth clear and convincing evidence at trial that knowledge of such production details was necessary to practice the claimed invention without undue experimentation. In contrast to the absence of evidence by Koito, Turn-Key presented evidence by the inventor of the '268 patent that these details were omitted from the patent because they" }, { "docid": "11168128", "title": "", "text": "issue to go to trial. See id. (finding abuse of discretion in refusing to allow amended admission where the plaintiff moved to amend prior to district court’s hearing on summary judgment motion, and stating that “[a]lthough [defendant] may have difficulty finding evidence to establish [the facts represented in the original admissions], this difficulty derives from the inaccuracy of the admissions rather than the stage of the proceedings at which the [plaintiff] sought to amend its admissions”). Having resolved this preliminary matter, the Court will now explain its conclusion that neither party is entitled to summary judgment on the asserted invalidity defense. B. On-sale bar: ready for patenting and put in public use Donaldson argues that the record shows by clear and convincing evidence that the on-sale bar conditions were met because the ’456 patent had been reduced to practice and put into public use by, at the latest, April 1977, several months prior to the on-sale bar date of June 19, 1977. EPC refutes those allegations, asserting that the activity to which Donaldson is referring was for testing purposes only and thus falls within the experimental use exception to the rule. EPC contends that the invention was not reduced to practice until the completion of tests in August 1977 showing that the device worked as intended — that the device progressively locked up in use and sustained vibration. At issue are the justifiable inferences to be drawn from an April, 27,1977 letter by Ike Leighty memorializing a visit by Mr. Leighty and Joe Nelson to Mack Trucks. During the visit, Mr. Leighty and Mr. Nelson presented and discussed their available line of gauges, none of which included the lock-up feature of the ’456 patent. They also, however, apparently gave a handmade prototype of a progressive gauge indicator to Bill Baldwin of Mack Trucks’ Vehicle Development division. In dispute is whether in so doing EPC triggered the on-sale bar clock and rendered the patent invalid. The relevant portion of the letter, the last three paragraphs, reads as follows: [¶ 7] In the meantime, we hope you will be able to give" }, { "docid": "11168127", "title": "", "text": "the latest and thus Donaldson had notice of the factual dispute throughout the discovery period. The Court notes further that in March and April 2000, Donaldson served 297 Requests for Admission on EPC, none of which, according to EPC, raised, explicitly or implicitly, an issue regarding the reduction to practice date. In light of these facts and the voluminous record in this case, EPC’s failure to “catch” what it alleges was a premature and incorrect interrogatory response is neither unreasonable nor inexplicable. The inherently factual nature of the reduction to practice inquiry further supports this Court’s conclusion that justice would not best be served by binding EPC to what could reasonably be deemed a premature mischaracterization of facts in evidence and known to both parties. See Prusia, 18 F.3d at 640 (directing courts to consider the effect upon the litigation and prejudice to the resisting party “rather than focusing on the moving party’s excuses for erroneous admission”). Moreover, Donaldson has not shown that it will be unduly prejudiced by a ruling that will permit this issue to go to trial. See id. (finding abuse of discretion in refusing to allow amended admission where the plaintiff moved to amend prior to district court’s hearing on summary judgment motion, and stating that “[a]lthough [defendant] may have difficulty finding evidence to establish [the facts represented in the original admissions], this difficulty derives from the inaccuracy of the admissions rather than the stage of the proceedings at which the [plaintiff] sought to amend its admissions”). Having resolved this preliminary matter, the Court will now explain its conclusion that neither party is entitled to summary judgment on the asserted invalidity defense. B. On-sale bar: ready for patenting and put in public use Donaldson argues that the record shows by clear and convincing evidence that the on-sale bar conditions were met because the ’456 patent had been reduced to practice and put into public use by, at the latest, April 1977, several months prior to the on-sale bar date of June 19, 1977. EPC refutes those allegations, asserting that the activity to which Donaldson is referring" }, { "docid": "16251328", "title": "", "text": "Of James W. Miller (docket no. 252) is denied. 7. Donaldson’s January 9, 2004, Motion In Limine To Exclude Unreliable Expert Opinion On Lost Profits Under Rule 702 Of The Federal Rules Of Evidence (docket no. 263) is denied. 8. Donaldson’s February 17, 2004, Motion To Amend Answer To Add The Already Allowed Defense Of Double Patenting (docket no. 280) is granted. 9. EPC’s February 17, 2004, Motion To Release Two Summary Judgment Exhibits (docket no. 281) is granted. Deposition Exhibits 65 and 68, offered in evidence by Donaldson at the September 21, 2000, “Markman ” and summary judgment hearing, shall be released to EPC. 10. Donaldson’s March 1, 2004, Motion In Limine To Exclude Any Testimony Prevented By EPC’s Now Abandoned Privilege Objections (docket no. 289) is granted, as more fully explained herein. 11. Donaldson’s March 1, 2004, Motion In Limine To Exclude Evidence Relating To The Doctrine Of Equivalents And Motion To Modify Claim Construction (docket no. 292) is denied. 12. EPC’s March 26, 2004, Motion In Limine To Exclude The Defense Of Patent Misuse (docket no. 316) is denied, but evidence of “patent misuse” is limited to the two incidences of “misuse” upon which Donaldson now relies. 13. EPC’s March 26, 2004, Motion In Limine To Preclude Donaldson From Presenting Any Theory Of Non-Infringement Based On Separate Patentability (docket no. 317) is denied. 14. Donaldson’s March 26, 2004, Motion In Limine To Exclude Videotape (docket no. 318) is denied. The videotape will be played by the court during jury selection as background to the litigation. The parties shall submit proposed jury instructions — and if at all possible, a single stipulated instruction — that, inter alia, advises the jury of the background use of the videotape, the fact that the videotape is not evidence, and that the jurors will be required to decide the case on the basis of the evidence presented and the law as stated in the court’s instructions. 15. Donaldson’s March 26, 2004, Motion In Limine On Admissibility Of January 20, 1998, Letter From John Held (docket no. 319) is granted. The court agrees" }, { "docid": "16251323", "title": "", "text": "procedures. Donaldson then details several aspects in which it contends that the videotape fails to be fair and impartial, based on timing and depth (or lack thereof) with which it addresses certain issues. The court has reviewed the copy of the videotape provided to federal courts by the Federal Judicial Center. The court concludes that the videotape would provide helpful background on principles of patent law and procedures and practices before the PTO for jurors who are likely to be largely or wholly unfamiliar with patent cases. The court is not persuaded that there is a prejudicial lack of neutrality or an obfuscation of issues in the videotape. Rather, the videotape does what it intends to do: provide useful background to patent disputes. Therefore, the court will deny Donaldson’s motion, and will play the videotape during jury selection as part of the court’s explanation of the background to the case. This course will, first and foremost, permit the court to explain to the jurors that the videotape is not evidence, but is intended only to provide some background to the present dispute, and to remind the jurors that they will be required to decide the case on the basis of the evidence presented and the law as explained in the court’s jury instructions. It will also permit the parties to address, during voir dire, the specific issues in this case, thus eliminating any potential concern that the videotape either does not address those issues or does not address them fairly or in sufficient detail. The court will require the parties to submit proposed jury instructions — and if at all possible, a single stipulated instruction— advising the jury of the background use of the videotape, the fact that the videotape is not evidence, and that the jurors will be required to decide the case on the basis of the evidence presented and the law as stated in the court’s instructions. VII. RELEASE OF SUMMARY JUDGMENT EXHIBITS The final issue before the court is, refreshingly, unresisted. That issue is raised in EPC’s February 17, 2004, Motion To Release Two Summary Judgment" }, { "docid": "5212294", "title": "", "text": "use the invention. If the inventors failed to provide an enabling disclosure, the patent is invalid. However, because descriptions in patents are addressed to those skilled in the art to which the invention pertains, an applicant for a patent need not expressly set forth in his specification subject matter which is commonly understood by persons skilled in the art. The enablement defense does not require an intent to withhold; all that is required is a failure to teach how to practice the full scope of the claimed invention. In other words, if a person of ordinary skill in the art could not make and use the invention disclosed in the patent without undue experimentation, the patent is invalid. However, some routine amount of experimentation to make and use the invention is allowable. The patent need not contain a working example if the invention is otherwise disclosed in such a manner that one skilled in the art to which the invention pertains will be able to practice it without an undue amount of experimentation. Final Jury Instructions at 25 (April 1, 2010). This instruction correctly states the law. Precedent establishes that “[t]he enablement requirement is met if the description enables any mode of making and using the invention.” Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1361 (Fed.Cir.1998) (quoting Engel Indus., Inc. v. Lockformer Co., 946 F.2d 1528, 1533 (Fed.Cir.1991)). See also Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1307 (Fed.Cir.2010) (“the district court erroneously required Transocean to enable the most efficient commercial embodiment, rather than the claims”); Durel Corp. v. Osram Sylvania Inc., 256 F.3d 1298, 1307 (Fed.Cir.2001) (“If the disclosure enables a person of ordinary skill in the art to make a particular metal oxide coating from at least one of the suggested precursors, the enablement requirement for that oxide coating is satisfied”). Continuing development is often contemplated and necessary, while early filing is often essential. CoreValve argues that in no event does testing in pigs enable use in humans. However, it has long been recognized that when experimentation on human subjects" }, { "docid": "16251238", "title": "", "text": "of “misuse” upon which Donaldson now relies. Moreover, the court finds that the evidence so far identified in the record as supporting the patent misuse defense is remarkably weak, and may not ultimately support submission of the defense to the jury. C. Separate Patentability The final motion addressed to Donaldson’s defenses is EPC’s March 26, 2004, Motion In Limine To Preclude Donaldson From Presenting Any Theory Of Non-Infringement Based On Separate Patenta-bility (docket no. 317). Donaldson resisted that motion on April 2, 2004 (docket no. 335), and EPC filed a reply on April 8, 2004 (docket no. 340). At issue in this motion is evidence of Donaldson’s U.S. Patent No. 6,604,486 B1 (the Krisko patent, supra), which both parties assert is related to Donaldson’s NG Air Alert. 1. Arguments of the parties In this motion, EPC argues that the Krisko patent and any reference to it should be excluded pursuant to Rules 402 and 403 of the Federal Rules of Evidence for purposes of proving that Donaldson’s NG Air Alert does not infringe EPC’s ’456 patent under the doctrine of equivalents. EPC contends that Donaldson has conceded that separate patentability is not relevant to literal infringement. EPC contends that the Krisko patent is irrelevant to the infringement analysis, because, from the claims and file history of the Krisko patent, it is clear that there is no logical nexus between the disputed issues — i.e., whether or not the “locking fingers” of the NG Air Alert are substantially different from the “elongated locking member” of the ’456 patent — and the examiner’s analysis of the patentability of the Krisko patent. Moreover, EPC contends that introduction of evidence of the Krisko patent will only serve to confuse the jury into believing that the patent gives Donaldson the right to make the NG Air Alert, when all a patent gives the holder is the right to exclude others from practicing the invention. EPC contends that there is even more reason to exclude this evidence on grounds of confusion, where the examiner did not address the differences between the Krisko patent and the ’456" }, { "docid": "11168122", "title": "", "text": "is not triggered by those activities which can reasonably be deemed experimental use. See id. Here, the patent application was filed on June 19, 1978, and therefore June 19, 1977 constitutes the critical date for purposes of the on-sale bar of 35 U.S.C. § 102(b). At issue, then, is whether EPC activities prior to June 19, 1977 fall within the experimental use exception. A patent is presumed valid, and invalidity must be established with clear and convincing evidence by the challenging party. See 35 U.S.C. § 282; American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1360 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984); Abbott Labs. v. Geneva Pharm., 182 F.3d 1315, 1318 (Fed.Cir.1999). To establish invalidity under 35 U.S.C. § 102(b), Donaldson must prove that all of the claims of the patent were ready for patenting and were in use or on sale before the critical date. See Pfaff, 525 U.S. at 67, 119 S.Ct. 304 (discussing conditions for application of on-sale bar). One way by which a party can demonstrate that an invention was “ready for patenting” is “by proof of reduction to practice before the critical date.” Id. When an actual embodiment of all of the elements of the claimed invention has been built, the invention has been reduced to practice. See id. at 57 n. 2, 119 S.Ct. 304 (quoting Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 383, 48 S.Ct. 380, 72 L.Ed. 610 (1928) (“A machine is reduced to practice when it is assembled, adjusted and used. A manufacture is reduced to practice when it is completely manufactured.”)); RCA Corp. v. Data General Corp., 887 F.2d 1056, 1061 (Fed.Cir.1989) (“Experimental use, which means perfecting or completing an invention to the point of determining that it will work for its intended purpose, ends with an actual reduction to practice.”) (citations omitted). Evidence such as memoranda, drawings, correspondence and testimony of witnesses may be used to establish that the embodiment was in fact the claimed invention. See RCA Corp., 887 F.2d at 1060. If" } ]

[ { "docid": "23243068", "title": "", "text": "U. S. 61, 70-71 (1943). Cf. Illinois Natural Gas Co. v. Central Illinois Public Service Co., supra at 504-505; State Tax Comm’n v. Interstate Natural Gas Co., 284 U. S. 41, 44 (1931). Missouri v. Kansas Natural Gas Co., 265 U. S. 298 (1924); Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927); State Corp. Comm’n v. Wichita Gas Co., 290 U. S. 561 (1934). See note 9, supra. H. R. Rep. No. 709,75th Cong., 1st Sess., 2. Ibid. Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 602-603 (1945). The Federal Power Commission has not asserted jurisdiction over all sales taking place in the natural gas fields even though in interstate commerce for resale for ultimate public consumption. In the Matter of Columbian Fuel Corp., 2 F. P. C. 200; In the Matter of Billings Co., 2 F. P. C. 288. We express no opinion as to the validity of the jurisdictional tests employed by the Commission in these cases. Cf. Colorado Interstate Gas Co. v. Federal Power Comm’n, supra at 603; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 607-612 (1944). La. Gen. Stat. §§ 4766-4826.2. The record contains testimony by counsel for petitioner to the effect that these provisions apply to petitioner and that petitioner’s operations have conformed with their requirements. Counsel for the Louisiana Public Service Commission and for two Louisiana municipalities participated in the proceedings before the Federal Power Commission. A number of cases in this Court have held that the reasonableness of cost items such as that incurred by a purchasing pipe-line company in acquiring gas for transportation may be inquired into during the course of subsequent regulation when buyer and seller are affiliated corporations and there is evidence that the sales were not made at arm’s length. The Commission found affiliation to exist between petitioner and only one of the three purchasing companies, the Mississippi River Fuel Corporation. There was a finding of “close contractual and operating arrangements” between petitioner and another of the purchasing companies. Natural Gas Pipeline Co. v." } ]

[ { "docid": "5562294", "title": "", "text": "authority to regulate comprehensively under the NGA and NGPA. Recently, in Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), the Court posited the conclusion that FERC does not preempt the States’ “traditional power” to regulate the production of gas on the premise that FERC’s regulatory power is “carefully divided up.” 489 U.S. at -, 109 S.Ct. at 1273. The Court emphasized that although Congress could have empowered FERC to regulate the entire natural gas field to the limit of constitutional power, it did not do so. Id. 109 S.Ct. at 1273-74. Instead, Congress confined FERC’s jurisdiction within the limits of section 1(b), specifying not only the intended reach of federal power, but also “the areas into which this power was not to extend.” Id. at 1274 (quoting FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499 (1949)). FERC, therefore, has exclusive jurisdiction over the sale and transportation of natural gas in interstate commerce for resale, while Congress expressly reserved to the states “the power to regulate, among other things ‘the production or gathering of natural gas,’ that is, ‘the physical acts of drawing gas from the earth and preparing it for the first stages of distribution.’ ” 109 S.Ct. at 1274 (quoting Northern Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 89-90, 83 S.Ct. 646, 649-50, 9 L.Ed.2d 601 (1963)). Consistent with Congress’ intent, the terms, production and gathering are to be “narrowly confined,” Transcontinental Gas Pipe Line, 474 U.S. at 418, 106 S.Ct. at 714-15, and “exceptions to the primary grant of jurisdiction in section 1(b) are to be strictly construed.” Interstate Natural Gas Co. v. FPC, 331 U.S. 682, 690-91, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742 (1947). Thus, although FERC’s power to regulate may extend to the limits of its jurisdiction, the “express jurisdictional limitation on FERC’s powers contained in § 1(b) of the NGA,” Northwest Central Pipeline, 109 S.Ct. at 1274, cannot be recast or obscured in the agency’s attempt to formulate policy to protect" }, { "docid": "624400", "title": "", "text": "Co. v. FPC, 324 U.S. 581, 603, 65 S.Ct. 829, 839, 89 L.Ed. 1206 (1945), but is asserting jurisdiction as to Mountain Fuel’s service of delivering gas from its reserves into its pipeline for interstate transportation to its retail customers in Utah. This analysis also distinguishes FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499 (1949), which petitioners rely on. Petitioners’ Brief at 24-25. In Panhandle Eastern, the Court held that the production or gathering exemption of § 1 excluded from the Commission’s jurisdiction the sale by an interstate pipeline of its undeveloped reserves to a production company it had organized. 337 U.S. at 507-09, 69 S.Ct. at 1257-58. However, in United Gas Co. v. Continental Oil Co., 381 U.S. 392, 85 S.Ct. 1517, 14 L.Ed.2d 466 (1965), the Court held that the sale of \"proven and substan- . Petitioners claim there would be no interstate conflict because Colorado has no interest in Mountain Fuel’s Colorado production. Petitioners’ Brief at 43-44. It is true that Colorado has asserted no interest in this dispute. However, the mere fact Colorado has not asserted such an interest now does not mean it will not have one in the future which it may wish to press before the Commission. . As the Commission acknowledges, its Natural Gas Act jurisdiction does not extend to \"natural gas production from leases containing no wells which produced or could have produced natural gas on November 8, 1978, and natural gas production which qualifies for pricing under Sections 102(c), 103(c) and 107(c)(l)-(4) of the NGPA.\" J.A. A:23." }, { "docid": "8405291", "title": "", "text": "stops and transportation begins: Discomfort in drawing the jurisdictional line at points internal to an overall system may be soothed with the reminder that Congress did not intend to extend FERC’s jurisdiction to all natural gas pipelines; indeed it demands the drawing of jurisdictional lines, even when the end of gathering is not easily located On remand in the Sea Robin case, the Commission acknowledged: “As noted by the Fifth Circuit, where gas is destined for interstate commerce, there is necessarily a point at which the collection or gathering of gas ends, and interstate transmission begins.” The Commission already set the jurisdictional boundary downstream from one of Jupiter’s pipelines. It is inconsistent and arbitrary for the Commission now to set a jurisdictional dividing point at Platform 39A. Given that the Commission’s decision as to both of Jupiter’s pipelines flowed — so to speak — from the conclusion that Platform 39A represents the point at which gathering ceases and transportation begins, the inconsistency generated in relation to the downstream non-jurisdictional line infects the whole of the Commission’s decision. We decline to address Jupiter’s additional arguments at this time. IV The Commission’s decision is fatally flawed by the inconsistency of having the putative point where gathering ends and transportation begins upstream from a gathering pipeline. The petition for review is GRANTED. The decision of the Commission is VACATED and the case is REMANDED. . 15 U.S.C. § 717(b). . 15 U.S.C. § 717(b). . FPC v. Panhandle E. Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 93 L.Ed. 1499 (1949); see N.W. Cent. Pipeline Corp. v. State Corp. Comm'n, 489 U.S. 493, 510, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989). . 15 U.S.C. § 717(b). . Interstate Nat’l Gas Co. v. FPC, 331 U.S. 682, 690-91, 67 S.Ct. 1482, 91 L.Ed. 1742 (1947). . N. Nat’l Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 90, 83 S.Ct. 646, 9 L.Ed.2d 601 (1963). . See Farmland Indus., Inc., 1983 WL 39391, 23 FERC ¶ 61,063 (1983). . Sea Robin Pipeline Co. v. FERC, 127 F.3d 365, 368 (5th Cir.1997) (citing" }, { "docid": "6838532", "title": "", "text": "design to SFV rate design does not represent a reversal in rate-making policy. FERC simply ordered a reallocation of fixed costs in pipeline rate design. The fact that the old system was labeled “MFV” and the new system “SFV” does not mean that the new system represents a radical departure from precedent. Rather, the change in Order No. 636 is simply one more adjustment, albeit a significant one, in a decades-long series of adjustments in rate design. See, e.g., Canadian River Gas Co., 3 FPC 32 (1942), aff'd, Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945); Mississippi River Fuel Corp., 4 FPC 340 (1945), aff'd in part and remanded, Mississippi River Fuel Corp. v. FPC, 163 F.2d 433 (D.C.Cir.1947); Atlantic Seaboard Corp., 11 FPC 43 (1952); State Corp. Comm’n v. FPC, 206 F.2d 690 (8th Cir.1953), cert. denied, 346 U.S. 922, 74 S.Ct. 307, 98 L.Ed. 416 (1954); Fuels Research Council, Inc. v. FPC, 374 F.2d 842 (7th Cir.1967); United Gas Pipe Line Co., 50 FPC 1348 (1973), reh’g denied, 51 FPC 1014 (1974), aff'd sub nom. Consolidated Gas Supply Corp. v. FPC, 520 F.2d 1176 (D.C.Cir.1975); Columbia Gas Transmission Corp. v. FERC, 628 F.2d 578 (D.C.Cir.1979); Northern Indiana Pub. Serv. Co. v. FERC, 782 F.2d 730 (7th Cir.1986) (NIPSCO). Like past changes in rate design, FERC initiated the departure from MFV in response to changing market conditions. Specifically, the agency determined that continued adherence to MFV rate design would “inhibit the goal of the development of a competitive, national gas market and, there fore, ... [would] not comport with the goals set forth\" in Order No. 636. Order No. 636, 1130,939, at 30,433. For various reasons, pipelines prior to Order No. 636 had differing amounts of fixed costs in their commodity and usage charges. As FERC determined, \"[t]his situation ... can hinder competition between gas sellers at the welihead because competition is not based on the seller's costs and therefore on their abifity to compete directly with each other.\" Id.; see also supra Part W.A.1. The PUCs' objection that FERC has" }, { "docid": "17699217", "title": "", "text": "the sale thereof in interstate and foreign commerce is necessary in the public interest.” 717 (b) states: “The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.\" (Emphasis supplied.) Interstate commerce is defined as follows: (15 U.S.C.A. § 717a. Definitions) “(7) ‘Interstate commerce’ means commerce between any point in a State and any point outside thereof, or between points within the same State but through any place outside thereof, but only insofar as such commerce takes place within the United States.” That the Act does not embrace intrastate commerce is clear from the Act itself and from judicial interpretations thereof. Colorado Interstate Gas Co. v. Federal Power Commission, 10 Cir., 1944, 142 F.2d 943, 958, affirmed in Colorado Interstate Gas Co. v. Federal Power Commission, 1945, 324 U.S. 581, 585, 588, 65 S.Ct. 829, 89 L.Ed. 1206; Panhandle Eastern Pipe Line Co. v. Public Service Commission of Indiana, 1947, 332 U.S. 507, 516, 517, 68 S.Ct. 190, 92 L.Ed. 128; Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 1951, 341 U.S. 329, 334, 71 S.Ct. 777, 95 L.Ed. 993. See State Corp. Commission of Kansas v. Federal Power Commission, 8 Cir., 1953, 206 F.2d 690, 707, certiorari denied 346 U.S. 922, 74 S.Ct. 307, 98 L.Ed. 416. That gas pipeline companies can be engaged in both intrastate as well as interstate business and have the intrastate portion not subject to FPC jurisdiction is illustrated by Colorado Interstate Gas Co. v. Federal Power Commission, 1945, 324 U.S. 581, 585, 65 S.Ct. 829, 89 L.Ed. 1206. Petitioners argue, however, that the four contracts, two for “dump gas” and two for “firm gas”, were" }, { "docid": "16817178", "title": "", "text": "1(b) of the Natural Gas Act (“the Act”), 15 U.S.C. § 717 et seq., governs “the transportation of natural gas in interstate commerce.” 15 U.S.C. § 717(b). However, in section 1(b) of the Act Congress prescribed not only “the intended reach of the Commission’s power, but also specified the areas into which this power was not to extend.” Federal Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499 (1949) (emphasis added). Section 1(b) expressly exempts from the Commission’s jurisdiction “the production or gathering of natural gas.” 15 U.S.C. § 717(b). Thus, Congress “carefully divided,” Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 510, 109 S.Ct. 1262, 1274, 103 L.Ed.2d 509 (1989), energy regulatory authority and “did not envisage federal regulation of the entire natural-gas field to the limit of constitutional power. Rather it contemplated the exercise of federal power as specified in the Act.” Panhandle Eastern, 337 U.S. at 502-03, 69 S.Ct. at 1255. The Natural Gas Act does not define either “transportation,” which falls within the Commission’s jurisdiction, or “gathering,” which is exempt from FERC authority under the Act. The Supreme Court has, however, held that “[exceptions to the primary grant of jurisdiction in the section are to be strictly construed.” Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U.S. 682, 690-91, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742 (1947) (construing 15 U.S.C. § 717(b)). Thus, the Supreme Court has “consistently held that ‘production’ and ‘gathering’ are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution.” Northern Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 90, 83 S.Ct. 646, 649-50, 9 L.Ed.2d 601 (1963). The Commission’s long-held definition of gathering, taken as consistent with the Supreme Court’s pronouncements on the Act, is “the collecting of gas from various wells and bringing it by separate and several individual lines to a cental point where it is delivered into a single line.” Barnes Transp. Co., 18 F.P.C. 369, 372 (1957); see" }, { "docid": "22182206", "title": "", "text": "Commission has sought from Congress legislation designed to impose a general service obligation, see hearings, 80th Congress, H.R. 4051, pages 99, 100, 428-430, 461-A62, and has sought to amend Section 7 (b), see Annual Reports 1951 at page 145; 1952 page 152; 1953 page 155; 1954 page 170. . The Commission’s Order forbidding the transfer of leases was reversed: “The Commission seeks to distinguish between the activities of production and gathering, such as drilling, spacing wells, or collecting gas, and the facilities, such as reserves and gas leases, used therefor and argues that only the former were excluded from the coverage of the Act. * * * In Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581, 603, 65 S.Ct. 829, 839, 89 L.Ed. 1206, we said that this phrase comprehended the producing properties and gathering facilities of a natural-gas company. We now adhere to this natural and clear meaning of the words and their obvious expression of congressional intent. Of course leases are an essential part of production. * * * The Federal Power Commission leans heavily upon § 7 (b) * # The argument here is that since natural gas is the ‘lifeblood’ of a pipe-line system, a company by disposing of its gas reserves, unhampered by Commission control, may render itself unable to continue service; consequently abandonment of facilities and service without the consent of the Commission will result. The argument begs the question. The section, like those above, covers only ‘facilities subject to the jurisdiction of the Commission.’ ” Federal Power Commission v. Panhandle Eastern Pipe Line Co., supra, at 337 U.S. 504-509, 69 S.Ct. 1256, 93 L.Ed. 1504-1507. And see Colorado Interstate Gas Co. v. Federal Power Commission, supra, Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682, 67 S.Ct. 1482, 91 L.Ed. 1742; Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333, approved expressly in the Phillips decision. . Federal Power Commission v. Hope Natural Gas Co., supra; State Corporation Commission of Kansas v. Federal Power Commission, 8 Cir., 215 F.2d 176;" }, { "docid": "15150522", "title": "", "text": "BREITENSTEIN, Circuit Judge. Petitioner McCulloch Interstate Gas Corporation seeks review of two orders of the Federal Power Commission. We affirm the FPC. The controversy relates to the transmission of gas by Phillips Petroleum Company from a producing area in Wyoming to its Douglas, Wyoming, processing plant and subsequent sale to Panhandle Eastern Pipe Line Company at the outlet of the Douglas plant. McCulloch has a pipeline which takes gas from the same general producing area. McCulloch says that it is aggrieved because the FPC orders permit the sale and delivery of gas by Phillips to Panhandle “in direct competition with other volumes of natural gas produced and sold to McCulloch Interstate by other producers of natural gas in the same fields”, and that McCulloch “will suffer a diminution in its required supplies of natural gas.” A basic question is whether the Phillips pipelines are behind-the-plant gathering facilities exempt from FPC jurisdiction. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, held that independent producers of natural gas are subject to the Natural Gas Act, 15 U.S.C. § 717 et seq. In so holding the Court recognized that production and gathering facilities are not within FPC jurisdiction. Ibid, at 678-679, 74 S.Ct. 794 and cases there cited. See also Saturn Oil & Gas Company v. Federal Power Commission, 10 Cir., 250 F.2d 61, 64-65, 68, cert. denied 355 U.S. 956, 78 S.Ct. 542, 2 L.Ed.2d 532. On April 30,1973, Phillips filed with FPC an application for authority to sell uncommitted Powder River Basin gas to Panhandle at the Mill Compressor Station which is owned by Panhandle and operated by Phillips. In connection therewith Phillips proposed to construct about 35 miles of pipeline connecting Phillips’ wells in the Spotted Horse Field to the Mills Station. In addition, Phillips proposed a 40,000 foot line from Spotted Horse to the LX Bar Field. The pipeline from the Mills Station to the Douglas plant is owned by Panhandle. The Phillips application was given FPC Docket No. C173-736. McCulloch was permitted to intervene in the proceedings. It requested that the matter" }, { "docid": "6838531", "title": "", "text": "in variable charges seems to work well for the oil pipeline industry, so it should also work in the case of gas pipelines. As the Supreme Court has noted, “[a]llocation of costs is not a matter for the slide-rule. It involves judgment on a myriad of facts.” Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 589, 65 S.Ct. 829, 833, 89 L.Ed. 1206 (1945). Although the relevant technology has changed since Colorado Interstate Gas, the point that “[r]ate-making is essentially a legislative function,” id., has not. Our task, then, is not to determine whether MFV rate design is superior to SFV rate design, but merely to determine whether FERC has “made a reasoned decision based upon substantial evidence in the record” in departing from MFV rate design. Town of Norwood v. FERC, 962 F.2d 20, 22 (D.C.Cir.1992). Initially, we note that the PUCs have mischaracterized FERC’s decision to depart from MFV rate design. As FERC notes in its brief, “modifying pipeline rate design to promote competition is nothing new.” The switch from MFV rate design to SFV rate design does not represent a reversal in rate-making policy. FERC simply ordered a reallocation of fixed costs in pipeline rate design. The fact that the old system was labeled “MFV” and the new system “SFV” does not mean that the new system represents a radical departure from precedent. Rather, the change in Order No. 636 is simply one more adjustment, albeit a significant one, in a decades-long series of adjustments in rate design. See, e.g., Canadian River Gas Co., 3 FPC 32 (1942), aff'd, Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945); Mississippi River Fuel Corp., 4 FPC 340 (1945), aff'd in part and remanded, Mississippi River Fuel Corp. v. FPC, 163 F.2d 433 (D.C.Cir.1947); Atlantic Seaboard Corp., 11 FPC 43 (1952); State Corp. Comm’n v. FPC, 206 F.2d 690 (8th Cir.1953), cert. denied, 346 U.S. 922, 74 S.Ct. 307, 98 L.Ed. 416 (1954); Fuels Research Council, Inc. v. FPC, 374 F.2d 842 (7th Cir.1967); United Gas Pipe Line Co., 50 FPC 1348" }, { "docid": "5562292", "title": "", "text": "public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas. In § 1(b) of the Act, [tjhree things and three only Congress drew within its own regulatory power, delegated by the Act to its agent, the Federal Power Commission. These were (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale. FPC v. Louisiana Power & Light Co., 406 U.S. 621, 636, 92 S.Ct. 1827, 1836, 32 L.Ed.2d 369 (1972) (quoting Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 332 U.S. 507, 516, 68 S.Ct. 190, 194-95, 92 L.Ed. 128 (1947)). Set apart from federal regulation were the activities of production and gathering. Therefore, “under section 1(b) the Commission does not have express or implied rate-regulatory jurisdiction of the production and gathering of gas.” Colorado Interstate Gas Co. v. FPC, 142 F.2d 943, 952 (10th Cir.1944), aff'd, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945). However, because the NGA’s “utility-type ratemaking,” Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd., 474 U.S. 409, 420, 106 S.Ct. 709, 715, 88 L.Ed.2d 732 (1986), was ill-suited to regulate or remedy the severe gas shortages of the early 1970’s, Congress enacted the NGPA, which “reflects a congressional belief that a new system of natural gas pricing was needed to balance supply and demand.” Id. at 421, 106 S.Ct. at 716 (citing S.Rep. No. 95-436, at 10, U.S.Code Cong. & Admin.News 1978, pp. 7659, 7858). Along with the NGPA’s unleashing market forces to a greater extent to determine the supply, demand, and price of natural gas, FERC’s regulatory control expanded to include jurisdiction over the intrastate market. Id. at 421, 106 S.Ct. at 716. Nevertheless, the Court has continued to circumscribe FERC’s broad" }, { "docid": "17699218", "title": "", "text": "interpretations thereof. Colorado Interstate Gas Co. v. Federal Power Commission, 10 Cir., 1944, 142 F.2d 943, 958, affirmed in Colorado Interstate Gas Co. v. Federal Power Commission, 1945, 324 U.S. 581, 585, 588, 65 S.Ct. 829, 89 L.Ed. 1206; Panhandle Eastern Pipe Line Co. v. Public Service Commission of Indiana, 1947, 332 U.S. 507, 516, 517, 68 S.Ct. 190, 92 L.Ed. 128; Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 1951, 341 U.S. 329, 334, 71 S.Ct. 777, 95 L.Ed. 993. See State Corp. Commission of Kansas v. Federal Power Commission, 8 Cir., 1953, 206 F.2d 690, 707, certiorari denied 346 U.S. 922, 74 S.Ct. 307, 98 L.Ed. 416. That gas pipeline companies can be engaged in both intrastate as well as interstate business and have the intrastate portion not subject to FPC jurisdiction is illustrated by Colorado Interstate Gas Co. v. Federal Power Commission, 1945, 324 U.S. 581, 585, 65 S.Ct. 829, 89 L.Ed. 1206. Petitioners argue, however, that the four contracts, two for “dump gas” and two for “firm gas”, were interdependent, that “the natural gas delivered in one stream at the discharge point, pursuant to these interdependent contractual instruments, is then transported in indistinguishable quantities southwestward along the Tioga to Williston interstate line”, and that they are therefore subject to FPC jurisdiction. As found by the Examiner and approved by the FPC, the gas received by Montana-Dakota at Tioga, North Dakota, is broken into two streams, one of which moves eastward in the Tioga-Minot, North Dakota, intrastate line. Clearly that is and can only be intrastate transportation not subject to FPC control. The other stream moves westward but before crossing any state line a small portion of it goes off into the laterals serving the four North Dakota towns of Ray, Wheelock, Epping and Springbrook. The gas going into the Tioga-Minot intrastate line and to the four named North Dakota towns is bought and paid for under the “firm gas” contracts. We think, then, the gas sold pursuant to such “firm gas” contracts for consumption in North Dakota is clearly distinguishable from the “dump gas”" }, { "docid": "17535320", "title": "", "text": "producer to deliver more gas than contracted for. This is so because, whatever else may be the vagaries of the § 1(b) production and gathering exclusion, the Commission lacks power to order more production. It could not, for example, compel a producer to rework a sickly well, explore a new horizon, attempt to exploit and tap a new reservoir, much less drill an additional well in order to permit, under state conservation laws, an increase in allowable production and hence deliveries to the pipe line purchaser. This prohibition is so far-reaching that the Commission even lacks the power to order an increase in transportation facilities because this would indirectly compel an increase in production. Panhandle Eastern Pipe Line Co. v. F. P. C., 3 Cir., 1953, 204 F.2d 675. See also F. P. C. v. Panhandle Eastern Pipe Line Co., 1949, 337 U.S. 498, 504-505, 69 S.Ct. 1251, 1257, 93 L.Ed. 1499; Colorado Interstate Gas Co. v. F. P. C., 1945, 324 U.S. 581, 598, 65 S.Ct. 829, 89 L.Ed. 1206; F. P. C. v. Hope Natural Gas Co., 1944, 320 U.S. 591, 612-615, 64 S.Ct. 281, 88 L.Ed. 333; Phillips Petroleum Co. v. State of Wisconsin, 1954, 347 U.S. 672, 678, 74 S.Ct. 794, 98 L.Ed. 1035; Interstate Natural Gas Co. v. F. P. C., 1947, 331 U.S. 682, 690, 67 S.Ct. 1482, 91 L.Ed. 1742. Of course if the Commission cannot compel an increase in quantity deliverable under a contract, it may not do so by enlarging the period of time during which such deliveries are to be made. The result is the same. The impact is the same. In each case the Commission’s order would be ineffectual unless more gas were produced, and this is forbidden territory to the Commission. V. The Supreme Court makes two things clear. First, private contracts underlie the whole scheme of regulation. Second, such private contracts give way only by determination of the Commission made after notice, hearing and order. This basic approach pervades all said and done in Mobile. “The Natural Gas Act * * * recognizes the need for private" }, { "docid": "22182189", "title": "", "text": "exemption, but that producers and gatherers making such sales also are ‘natural-gas companies’ under the Act, and the Commission has the authofity to regulate such sales.” The Commission’s brief in Magnolia No. 15320, page'4: “ * * * the Supreme Court on June 7, 1954, held that the Commission had jurisdiction over sales of natural gas in interstate commerce for resale, including such sales in the area of production and gathering * This “extreme” view of the Phillips decision was successfully pressed by the the Commission in Federal Power Comm, v. J. M. Huber, D.C.D.N.J., 133 F.Supp. 479 (now on appeal Third Circuit). . In the Phillips case, 347 U.S. at page 678, 74 S.Ct. at page 797, 98 L.Ed. at pages 1045-1046, the court reaffirms the previous cases on Section 1(b): “In Federal Power Commission v. Panhandle Eastern Pipeline Co., 337 U.S. 498, 505, 69 S.Ct. 1251, 1256, 93 L.Ed. 1499, we observed that the ‘natural and clear meaning’ of the phrase ‘production or gathering of natural gas’ is that it en: compasses ‘the producing properties and gathering facilities of a natural-gas company.’ Similarly, in Colorado Interstate Gas Co. v. Federal Power Comm., 324 U.S. 581, 598, 65 S.Ct. 829, 837, 89 L.Ed. 1208 we stated that ‘ (t) ransportation and sale do not include production or gathering’, and indicated that the ‘production or gathering’ exemption applies to the physical activities, facilities, and properties used in the production and gathering of natural gas. Id., 324 U.S. at pages 602-603, 65 S.Ct. at page 839. See also, Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 612-615, 64 S.Ct. 281, 292-294, 88 L.Ed. 333 [350-352]; Peoples Natural Gas Co. v. Federal Power Comm., 75 U.S.App.D.C. 235, 127 F.2d 153; cf. United States v. Public Utilities Comm., 345 U.S. 295, 307-311, 73 S.Ct. 706, 713-716, 97 L.Ed. 1020. * * * ” . Order 174 A, Section 154.92, “(a) Every independent producer who, on or since June 7, 1954, has engaged in the interstate * * * sale of natural gas subject to the jurisdiction of the Commission shall" }, { "docid": "624399", "title": "", "text": "is transported. . Petitioners cite Shell Oil Co. v. FERC, 566 F.2d 536 (5th Cir.1978), aff'd. by equally divided court, 440 U.S. 192, 99 S.Ct. 1273, 59 L.Ed.2d 247 (1979), in support of their argument that the Commission’s jurisdiction over Mountain Fuel’s interstate transportation facilities does not impose on Mountain Fuel a federal service obligation which dedicates its producing reserves to interstate commerce. In Shell Oil, the Fifth Circuit ruled that the Commission could not rely on \"the concept expressed as ‘service’ in the Natural Gas Act” to impose an implied ‘“prudent operator’ obligation\" on the certificates of public convenience and necessity required under the Act. 566 F.2d at 538-39. The court held that to allow the Commission jurisdiction to impose the prudent operator standard on certificate holders \"would all but eliminate the ‘production or gathering’ exclusion and would allow the FERC to encroach on areas reserved to the states.\" 566 F.2d at 540. (footnote omitted). Here the Commission is not asserting jurisdiction over \"the activity of producing or gathering natural gas,” Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 603, 65 S.Ct. 829, 839, 89 L.Ed. 1206 (1945), but is asserting jurisdiction as to Mountain Fuel’s service of delivering gas from its reserves into its pipeline for interstate transportation to its retail customers in Utah. This analysis also distinguishes FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499 (1949), which petitioners rely on. Petitioners’ Brief at 24-25. In Panhandle Eastern, the Court held that the production or gathering exemption of § 1 excluded from the Commission’s jurisdiction the sale by an interstate pipeline of its undeveloped reserves to a production company it had organized. 337 U.S. at 507-09, 69 S.Ct. at 1257-58. However, in United Gas Co. v. Continental Oil Co., 381 U.S. 392, 85 S.Ct. 1517, 14 L.Ed.2d 466 (1965), the Court held that the sale of \"proven and substan- . Petitioners claim there would be no interstate conflict because Colorado has no interest in Mountain Fuel’s Colorado production. Petitioners’ Brief at 43-44. It is true that Colorado has asserted" }, { "docid": "16817180", "title": "", "text": "also Conoco Inc. v. FERC, 90 F.3d 536, 539 n. 2 (D.C.Cir.1996) (“Gathering is the process of taking natural gas from the wells and moving it to a collection point for further movement through a pipeline’s principal transmission system.”) (citing Northwest Pipeline Corp. v. FERC, 905 F.2d 1403, 1404 n. 1 (10th Cir.1990)). Despite these attempts to clarify the Natural Gas Act, this Court has observed that “[t]he line between jurisdictional transportation and nonjurisdictional gathering is not always clear.” Conoco, 90 F.3d at 542. For many years the Commission employed two principal tests to differentiate transportation from gathering. Developed in the on-shore context, these tests were the “behind-the-plant” test and the “central-point-in-the-field” test. The “behind-the-plant” test presumes that all facilities located between the wellhead and a processing plant are non-jurisdictional gathering lines, while facilities downstream of the processing plant are presumptively transportation facilities. See Phillips Petroleum Co., 10 F.P.C. 246, 276-78, 1951 WL 1832 (1951), rev’d on other grounds, Wisconsin v. Federal Power Comm’n, 205 F.2d 706 (D.C.Cir.1953), aff'd, Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). For gas that requires no processing the “central-point-in-the-field” test applied, under which lateral lines collecting gas from separate wells that then converge into a single larger line (typically at the point where the gas is compressed for transportation by the pipeline), were classified as gathering facilities. E.g., Barnes Transp. Co., 18 F.P.C. 369, 372 (1957). Since 1983, the Commission has subsumed these two tests into its “primary function” test to determine “whether a facility is devoted to the collection of gas from wells — gathering— or to the further (‘downstream’) long-distance movement of gas after it has been collected — interstate transportation.” Conoco, 90 F.3d at 543 (citing Farmland Industries, Inc., 23 F.E.R.C. ¶ 61,063, at 61,143, 1983 WL 39391 (1983); Amerada Hess Corp., 52 F.E.R.C. ¶ 61,268, at 61,987-88, 1990 WL 1241336 (1990)). The “primary function” test generally employs the following six physical criteria: (1) the length and diameters of the lines; (2) the extension of the facility beyond the central point in the field;" }, { "docid": "16254564", "title": "", "text": "in Watkins. Id. Some of the natural gas remains in Watkins to serve markets in Colorado’s Front Range. Id. The Southern System proceeds to CIG’s storage field in Látigo, Colorado, and then southeast to Kit Carson Station. Id. The Southern System splits at Kit Carson Station, with lines extending into Kansas, Oklahoma, and Texas. Id. Both the Northern and Southern Systems connect with pipelines owned by other companies. Id. CIG’s operations include approximately 3,000 miles of small diameter, low pressure gathering lines. In May 1991, CIG filed a partial settlement resolving all issues arising during the course of its rate-making proceedings except for those specified in Article VI of the settlement. Colorado Interstate Gas Co., 62 F.E.R.C. ¶ 61,049, at 61,261 (1993). The Commission approved the settlement in August 1991. Id.; see Colorado Interstate Gas Co., 56 F.E.R.C. ¶ 61,212 (1991). An administrative law judge conducted a hearing regarding the issues listed in Article VI of the May 1991 settlement and issued an initial decision. Colorado Interstate Gas Co., 56 F.E.R.C. ¶ 63,018 (1991). One of the issues listed in Article VI was whether the Commission has jurisdiction over the rates CIG charges third-parties for gathering services and, if so, whether CIG’s gathering rates should be required to be posted in its tariff, and whether a systemwide rate or area gathering rates are appropriate. Id., ¶ 63,018, at 65,065-66. The administrative law judge resolved the jurisdictional issue in the Commission’s favor. Id. The administrative law judge noted the Eighth Circuit had recently considered whether the Commission has jurisdiction under the Natural Gas Act, 15 U.S.C. § 717-717w, to “‘regulate the rates that natural gas pipeline companies charge third-party interstate transportation shippers for moving natural gas on gathering facilities owned by the pipeline.’ ” Id., ¶ 63,018, at 65,065 (quoting Northern Natural Gas Co. v. F.E.R.C., 929 F.2d 1261, 1262-63 (8th Cir.), cert. denied, 502 U.S. 856, 112 S.Ct. 169, 116 L.Ed.2d 132 (1991)). The administrative law judge correctly stated the Eighth Circuit answered that question in the affirmative, broadly holding that the Commission has jurisdiction to ‘“regulate rates charged for" }, { "docid": "5562293", "title": "", "text": "Commission does not have express or implied rate-regulatory jurisdiction of the production and gathering of gas.” Colorado Interstate Gas Co. v. FPC, 142 F.2d 943, 952 (10th Cir.1944), aff'd, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945). However, because the NGA’s “utility-type ratemaking,” Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd., 474 U.S. 409, 420, 106 S.Ct. 709, 715, 88 L.Ed.2d 732 (1986), was ill-suited to regulate or remedy the severe gas shortages of the early 1970’s, Congress enacted the NGPA, which “reflects a congressional belief that a new system of natural gas pricing was needed to balance supply and demand.” Id. at 421, 106 S.Ct. at 716 (citing S.Rep. No. 95-436, at 10, U.S.Code Cong. & Admin.News 1978, pp. 7659, 7858). Along with the NGPA’s unleashing market forces to a greater extent to determine the supply, demand, and price of natural gas, FERC’s regulatory control expanded to include jurisdiction over the intrastate market. Id. at 421, 106 S.Ct. at 716. Nevertheless, the Court has continued to circumscribe FERC’s broad authority to regulate comprehensively under the NGA and NGPA. Recently, in Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), the Court posited the conclusion that FERC does not preempt the States’ “traditional power” to regulate the production of gas on the premise that FERC’s regulatory power is “carefully divided up.” 489 U.S. at -, 109 S.Ct. at 1273. The Court emphasized that although Congress could have empowered FERC to regulate the entire natural gas field to the limit of constitutional power, it did not do so. Id. 109 S.Ct. at 1273-74. Instead, Congress confined FERC’s jurisdiction within the limits of section 1(b), specifying not only the intended reach of federal power, but also “the areas into which this power was not to extend.” Id. at 1274 (quoting FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499 (1949)). FERC, therefore, has exclusive jurisdiction over the sale and transportation of natural gas in interstate commerce for resale, while" }, { "docid": "17535319", "title": "", "text": "cannot order an involuntary sale by a producer to a pipe line, so element (1) is fixed by the parties. The gas producer is unlike the traditional public utility whose holding out binds him to serve all on common terms. Element (2) is confined to gas with the possible expansion into the area of a service facility. We likewise know for an absolute certainty from Mobile, that the Commission cannot prescribe the price. This, too, is left to the parties subject only to a right to review by a hearing and on evidence under § 5. That takes care of element (3). On what basis, other than the insupportable one of judicial-administrative necessity can the Commission prescribe element (4) — that is, the amount of the commodity to be sold, whether expressed in terms of total quantity, or quantities for a stated term ? If the amount of the commodity, element (4), is thought of in terms of the quantity to be delivered, we know for a certainty that the Commission could not order a producer to deliver more gas than contracted for. This is so because, whatever else may be the vagaries of the § 1(b) production and gathering exclusion, the Commission lacks power to order more production. It could not, for example, compel a producer to rework a sickly well, explore a new horizon, attempt to exploit and tap a new reservoir, much less drill an additional well in order to permit, under state conservation laws, an increase in allowable production and hence deliveries to the pipe line purchaser. This prohibition is so far-reaching that the Commission even lacks the power to order an increase in transportation facilities because this would indirectly compel an increase in production. Panhandle Eastern Pipe Line Co. v. F. P. C., 3 Cir., 1953, 204 F.2d 675. See also F. P. C. v. Panhandle Eastern Pipe Line Co., 1949, 337 U.S. 498, 504-505, 69 S.Ct. 1251, 1257, 93 L.Ed. 1499; Colorado Interstate Gas Co. v. F. P. C., 1945, 324 U.S. 581, 598, 65 S.Ct. 829, 89 L.Ed. 1206; F. P. C. v." }, { "docid": "5562314", "title": "", "text": "and unreasonable” charges and anti-competitive abuse. . However, the Court has specifically noted that the enactment of the NGPA did not alter its consistent interpretation of FERC’s jurisdiction. See Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 474 U.S. 409, 106 S.Ct. 709, 88 L.Ed.2d 732 (1986). . In Saturn Oil & Gas Co. v. FPC, 250 F.2d 61, 64 (10th Cir.1957), cert. denied, 355 U.S. 956, 78 S.Ct. 542, 2 L.Ed.2d 532 (1958), a case involving the issue whether a small company selling natural gas at the wellhead is subject to the Natural Gas Act, the court stated the production and gathering exemption \"applies to the physical activities, facilities, and properties used in the production and gathering of natural gas and not to the business of production and gathering.” (citing Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 677, 74 S.Ct. 794, 796, 98 L.Ed. 1035 (1954)). .Indeed, FERC’s appellate brief does little to examine the factual and legal underpinning of this adjudication. Instead, the questions in this case are submerged in the Commission’s broad policy discussions about the need for national supervision of energy policy. . The Commission reevaluated and then reversed its prior order in Beacon Gasoline Co., 30 F.E.R.C. ¶ 61,041 (1985), and found the facilities operationally similar to those in Farmland upon application of the primary function test. In another order, Locust Ridge Gas Co., 37 F.E.R.C. ¶ 61,295 (1986), the Commission reversed its denial of the gathering exemption although the facilities were previously found to serve the sole purpose of bringing gas to a point of interconnection with two interstate pipelines. Id., at 61,882. . In Dorchester Gas Producing Co. v. FERC, 848 F.2d 634, 637 (5th Cir.1988), the Fifth Circuit, reviewing a subsequent FERC order clarifying this order, 36 F.E.R.C. ¶ 61,049 (1986), observed that \"the appropriate standard to be applied was evolving.” . See Locust Ridge, 37 F.E.R.C. ¶ 61,295 (1986). . Since the central point is considered the place where all \"gathered” gas is delivered into a single line, gathering would be complete at that point \"so that" }, { "docid": "16817177", "title": "", "text": "Opinion for the Court filed by Circuit Judge SENTELLE. Dissenting opinion filed by Circuit Judge EDWARDS. SENTELLE, Circuit Judge: ExxonMobil Gas Marketing Company, et al., (hereinafter “ExxonMobil”) and the Producer Coalition petition for review of Federal Energy Regulatory Commission (“FERC” or “the Commission”) orders in which FERC reclassified portions of Sea Robin Pipeline Company’s pipeline system on the Outer Continental Shelf as non-jurisdictional “gathering” facilities for natural gas, rather than jurisdictional “transportation” facilities, pursuant to section 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b). FERC argues that in developing and applying its reformulated “primary function” test the Commission followed the suggestion of the United States Court of Appeals for the Fifth Circuit in Sea Robin Pipeline Co. v. FERC, 127 F.3d 365 (5th Cir.1997) (“Sea Robin /”), and reasonably identified the demarcation point between gathering and transportation in Sea Robin’s pipeline system. Because the Commission did not act unreasonably in determining that portions of Sea Robin’s system were non-jurisdictional, we deny the petitions for review. I. Background A. Statutory and Regulatory Framework Section 1(b) of the Natural Gas Act (“the Act”), 15 U.S.C. § 717 et seq., governs “the transportation of natural gas in interstate commerce.” 15 U.S.C. § 717(b). However, in section 1(b) of the Act Congress prescribed not only “the intended reach of the Commission’s power, but also specified the areas into which this power was not to extend.” Federal Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499 (1949) (emphasis added). Section 1(b) expressly exempts from the Commission’s jurisdiction “the production or gathering of natural gas.” 15 U.S.C. § 717(b). Thus, Congress “carefully divided,” Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 510, 109 S.Ct. 1262, 1274, 103 L.Ed.2d 509 (1989), energy regulatory authority and “did not envisage federal regulation of the entire natural-gas field to the limit of constitutional power. Rather it contemplated the exercise of federal power as specified in the Act.” Panhandle Eastern, 337 U.S. at 502-03, 69 S.Ct. at 1255. The Natural Gas Act does not define either" } ]

[ { "docid": "21221943", "title": "", "text": "invention or confusing similarity of marks must be accepted as controlling, unless the contrary is established by evidence ‘which, in character and amount carries thorough conviction.’ ” Esso Standard Oil Company v. Sun Oil Company, supra. This rule applies though the case is heard de novo in the District Court. Radio Corporation of America v. International Standard Electric Corporation, 3 Cir., 232 F.2d 726. The Examiner of Interferences in his findings and opinion of February 21, 1958, ruled that there was likelihood of confusion, and found two instances of actual confusion, but held that two instances over the years were not conclusive as showing actual confusion. The Commissioner, speaking through his Assistant in affirming the Examiner, also ruled that there was a likelihood of confusion. The record made on the trial before the court reveals thirteen instances of actual confusion occurring between January 13, 1959, and February 19, 1962. The trial court concluded that there was not only a likelihood of confusion, but that actual confusion had resulted. The record supports the court’s findings of fact. Such findings are not clearly erroneous either in law or fact. Although proof of actual deception is not needed to justify an injunction against the use of a trademark, Abramson v. Coro, Inc., 5 Cir., 240 F.2d 854, such proof emphasizes the need for that relief, both as to the infringing mark and as to unfair competition. There was no error in the court’s af-firmance of the decision of the Patent Office, or in granting injunctive relief to appellee under its counterclaim, and its decision is Affirmed. . Appellee instituted timely Cancellation Proceedings to the former and Opposition Proceedings to the latter. These proceedings were consolidated. The Examiner of Interferences sustained both proceedings. The Commissioner of Patents affirmed the decision of the Examiner. . Appellant represented to the Patent Office (R 286) that “the word ‘ALO’ appearing in applicant’s mark has no meaning.” Upon the pre-trial (R 84) it stated that the name “ALO-CREME” was not descriptive and that it was an arbitrary mark. . In Nashville Syrup Co. v. Coca-Cola Co., 6 Cir." } ]

[ { "docid": "23610117", "title": "", "text": "summary judgment. The thorough conviction standard applies to “finding[s] of fact about confusing similarity of trademarks,” and there are no such findings on summary judgment. It is helpful to consider by analogy this court’s review of district court decisions. We review findings of fact under the clearly erroneous standard and conclusions of law de novo. A grant of summary judgment is reviewed de novo on the theory that a “finding” of no genuine issue of material fact is not a true finding of fact, but more like a legal conclusion. Moreover, the TTAB follows the same procedure and standards for summary judgment as the federal courts. See David J. Kera, Tips from the TTAB: Summary Judgment, 71 Trademark Rep. 59 (1981). We have found no cases that address this point, although some cases in the Federal Circuit have reviewed grants of summary judgment by the TTAB under what appears to be a de novo standard. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1567-68 (Fed.Cir.1987); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 627-28 (Fed.Cir.1984). Because the TTAB granted summary judgment, the district court should have applied a de novo standard instead of a thorough conviction standard. But the district court’s error does not require reversal. Our review of the district court’s grant of summary judgment is de novo in any event, and any undue deference given to the TTAB below becomes moot at this point. We are obliged to draw reasonable inferences in favor of the nonmoving party, and will affirm the entry of summary judgment only if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Allensworth v. General Motors Corp., 945 F.2d 174, 178 (7th Cir.1991). III. We now proceed to the merits. The dispute centers around whether Delavan’s COLOR JET mark infringes Spraying Systems’ “-JET” marks applied to similar spray nozzle products. The key to a showing of trademark infringement, trade dress infringement or unfair competition is a likelihood of confusion, deception or mistake. James Burrough" }, { "docid": "23610115", "title": "", "text": "Office. 2 McCarthy § 21:5, at 17. Spraying Systems argues that the thorough conviction standard should not apply to new evidence presented in the district court. It is true that new evidence must itself be considered de novo by the district court — in the sense of being fairly weighed without placing a thumb on the scales or dismissing it out of hand. But the evidence must then be weighed against the Board’s findings under the thorough conviction standard. Unless the new evidence leads to a thorough conviction that a finding of the Board is incorrect, that finding is controlling. Velsicol Chemical Corp. v. Monsanto Co., 579 F.2d 1038, 1042 (7th Cir.1978); Watkins Prods., Inc. v. Sunway Fruit Prods., Inc., 311 F.2d 496, 498-99 (7th Cir.1962), cert. denied, 373 U.S. 904, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963); Yale Elec. Corp. v. Robertson, 26 F.2d 972, 973 (2d Cir.1928) (L. Hand, J.); 2 McCarthy § 21:5, at 17. Finally, Spraying Systems argues that it is illogical for the district court’s review of the TTAB’s grant of summary judgment to be under the thorough conviction standard, while this court’s review of the district court’s summary judgment is de novo. Here Spraying Systems is on to something (although it does not seem to be sure of what, for it fails to explain what is illogical about this state of affairs). The problem is this: the thorough conviction standard applies to findings of the TTAB; a grant of summary judgment, however, does not yield any factual findings, but only a conclusion that there are no genuine issues of material fact. But perhaps such a conclusion of the Board is entitled to the same deference as a true finding of fact. After all, the thorough conviction standard is premised on the expertise of the Patent and Trademark Office, and that expertise may be employed for a conclusion that there are no issues of material fact just as it is for a factual finding. However, although it is a difficult question, we conclude that the thorough conviction standard cannot apply to the TTAB’s grant of" }, { "docid": "23610116", "title": "", "text": "of summary judgment to be under the thorough conviction standard, while this court’s review of the district court’s summary judgment is de novo. Here Spraying Systems is on to something (although it does not seem to be sure of what, for it fails to explain what is illogical about this state of affairs). The problem is this: the thorough conviction standard applies to findings of the TTAB; a grant of summary judgment, however, does not yield any factual findings, but only a conclusion that there are no genuine issues of material fact. But perhaps such a conclusion of the Board is entitled to the same deference as a true finding of fact. After all, the thorough conviction standard is premised on the expertise of the Patent and Trademark Office, and that expertise may be employed for a conclusion that there are no issues of material fact just as it is for a factual finding. However, although it is a difficult question, we conclude that the thorough conviction standard cannot apply to the TTAB’s grant of summary judgment. The thorough conviction standard applies to “finding[s] of fact about confusing similarity of trademarks,” and there are no such findings on summary judgment. It is helpful to consider by analogy this court’s review of district court decisions. We review findings of fact under the clearly erroneous standard and conclusions of law de novo. A grant of summary judgment is reviewed de novo on the theory that a “finding” of no genuine issue of material fact is not a true finding of fact, but more like a legal conclusion. Moreover, the TTAB follows the same procedure and standards for summary judgment as the federal courts. See David J. Kera, Tips from the TTAB: Summary Judgment, 71 Trademark Rep. 59 (1981). We have found no cases that address this point, although some cases in the Federal Circuit have reviewed grants of summary judgment by the TTAB under what appears to be a de novo standard. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1567-68 (Fed.Cir.1987); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739" }, { "docid": "23523425", "title": "", "text": "capacity. It is an appellate reviewer of facts found by the TTAB and is also a fact-finder based on new evidence introduced to the court. See 3 McCarthy, § 21:20, at 21-26. Although the district court’s review of the TTAB’s decision is considered de novo when the parties present new evidence and assert additional claims, the district court also must afford deference to the fact findings of the TTAB. See Spraying Sys., 975 F.2d at 391; 3 McCarthy § 21:21, at 21-27 to 21-28. The degree of deference that the district court must afford the TTAB’s findings of fact is a matter that recently has come under scrutiny. Before 1999, a majority of courts, including this one, followed the thorough conviction standard established in Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894). Under that standard, the TTAB’s determination “ ‘must be accepted as controlling upon a finding of fact about confusing similarity of trademarks, unless the contrary is established by testimony which in character and amount carries thorough conviction.’ ” Spraying Sys., 975 F.2d at 391 (quoting Fleetwood Co. v. Hazel Bishop, Inc., 352 F.2d 841, 844 (7th Cir.1965)); see also Material Supply Int’l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983, 990 (D.C.Cir.1998) (holding that the thorough conviction standard applies to review of the TTAB’s resolution of disputed issues of fact); Coach House Rest., Inc. v. Coach & Six Rest, Inc., 934 F.2d 1551, 1557 (11th Cir.1991) (same); Wells Fargo & Co. v. Stagecoach Prop., Inc., 685 F.2d 302, 306 (9th Cir.1982) (same); Aloe Creme Lab., Inc. v. Tex. Pharmacal Co., 335 F.2d 72, 74 (5th Cir.1964) (same); Wilson Jones Co. v. Gilbert & Bennett Mfg. Co. , 332 F.2d 216, 218 (2d Cir.1964) (same); Century Distilling Co. v. Continental Distilling Co., 106 F.2d 486, 489 (3d Cir.1939) (same); 3 McCarthy § 21:22, at 21-29 to 21-30 (noting that, before 1999, most courts used Morgan’s “thorough conviction” standard); but cf. On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1084 (Fed.Cir.2000) (noting that, in the Federal Circuit before 1999, TTAB questions of" }, { "docid": "16754520", "title": "", "text": "see also 15 U.S.C. § 1071(b)(3) (in district court the record before the TTAB “shall be admitted on motion of any party ... without prejudice to the right of any party to take further testimony”). Although courts sometimes refer to the district court’s review of the TTAB’s decision as a “de novo” proceeding, see, e.g., Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 391 (7th Cir.1992); Wilson Jones Co. v. Gilbert & Bennett Mfg. Co., 332 F.2d 216, 218 (2d Cir.1964), that is something of a misnomer: While district court review is called “de novo” because new evidence may be introduced, it is a unique procedure because unlike a true de novo proceeding, findings of fact made by the [TTAB] are given great weight and not upset unless new evidence is introduced which carries thorough conviction. 3 McCarthy, supra, § 21:21, at 21-26; see Esso Standard Oil Co. v. Sun Oil Co., 229 F.2d 37, 40 (D.C.Cir.1956) (adopting standard of review for decisions of Patent Office set forth in Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894), ie., finding of fact made by TTAB “must be accepted as controlling, unless the contrary is established by evidence ‘which, in character and amount carries thorough conviction’ ”); accord, Spraying Sys., 975 F.2d at 391; Coach House Restaurant, Inc. v. Coach & Six Restaurants, Inc., 934 F.2d 1551, 1557 (11th Cir.1991); Wells Fargo & Co. v. Stagecoach Properties, Inc., 685 F.2d 302, 306 (9th Cir.1982); Aloe Creme Laboratories, Inc. v. Texas Pharmacal Co., 335 F.2d 72, 74 (5th Cir.1964); Wilson Jones Co., 332 F.2d at 218; Century Distilling Co. v. Continental Distilling Co., 106 F.2d 486, 489 (3d Cir.1939); see also 3 McCarthy; supra, § 21:22, at 21-27 (“vast majority of courts” apply the thorough conviction standard); 1 Jerome Gilson & Jeffrey M. Samuels, Trademark Protection & Practice § 3.05[4](b)(ii), at 3-200 (1997) (same). In this case, however; the TTAB did not resolve any disputed issue of fact. Rather, it entered summary judgment in favor of Sunmatch because MSI failed to raise a material issue of" }, { "docid": "23523431", "title": "", "text": "The district court did not have the benefit of this clarification at the time it rendered its decision; therefore, we must determine whether, in substance, the district court’s review of the TTAB’s decision was consistent with Zurko. At the beginning of its analysis, the district court recognized that its review of the newly, presented evidence was de novo, but it also acknowledged that the TTAB’s factfinding was controlling “ ‘unless the contrary is established by testimony which in character and amount carries thorough conviction.’ ” R.49 at 16 (quoting Spraying Sys., 975 F.2d at 391), The court first outlined the newly presented evidence and then, with reference to the TTAB’s findings, discussed how that evidence required a different conclusion than that reached by the TTAB. In conclusion, the court stated that it had “given deference to the [TTAB’s] decision and [was] still left with a firm, thorough conviction that the [TTAB’s] decision was incorrect.” R.49 at 25. Thus, the district court did not apply the clearly erroneous standard rejected by the Supreme Court in Zurko, but rather applied the “meaningful review” required by the APA. Zurko, 527 U.S. at 162, 119 S.Ct. 1816. The district acted as a fact-finder with respect to the new evidence and factors not discussed by the TTAB, see id. at 164, 119 S.Ct. 1816, while also affording deference to the TTAB’s findings. Therefore, although the district court did not formally apply the substantial evidence standard now required by Zurko, the court applied that standard in substance, and it did not commit reversible error with respect to the standard of review. 2. Appellate Review of the District Court’s Decision This court reviews de novo the district court’s decision to grant summary judgment. See Albiero v. City of Kankakee, 246 F.3d 927, 931 (7th Cir.2001). 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 a judgment as a matter of law.” Fed. R.Civ.P. 56(c). “Factual" }, { "docid": "6707617", "title": "", "text": "PROLACTO relies upon in its post-trial briefing. In some -instances, in the absence of citations, the Court has been unable to locate substantial, if any, support in the record for PROLACTO’s propositions. The Court makes its findings of fact accordingly. .PROLACTO’s motion also included a request for the Court to reconsider portions of ■ its summary judgment ruling based on PLM’s purported bad faith adoption of its marks. The Court addresses the issue of bad faith in its findings of fact and conclusions of law, and, based on those findings and conclusions, will deny this portion of the motion as well. . In its summary judgment opinion, issued after Kappos but before B & B Hardware, the Court stated, citing pre-Kappos authorities, that, in a § 1071(b) proceeding, a district court \"reviews the TTAB’s findings of fact under the 'substantial evidence’ standard, which requires a court to defer to the factual findings made by the TTAB unless new evidence 'carries thorough conviction' ” but that the court reviews any new evidence de novo. PLM I, 69 F.Supp.3d at 193 (quoting Material Supply Int'l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983, 990 (D.C.Cir. 1998) (citing 3 McCarthy on Trademarks § 21:20 (4th ed. 1997))). McCarthy has recognized that the \"thorough conviction” rule is \"no longer the law” and that, after Kappos, \"the district court reviews with ‘de novo’ scrutiny.” 3 McCarthy on Trademarks § 21:20 (4th ed. 2016). To the extent that the Court’s discussion of the standard of review at summary judgment could be considered to have been incorrect at the time, it had no impact on the Court’s ultimate holding and does not require reconsideration. The Court’s discussion of the standard of review specifically concerned Complaint Count I, see PLM I, 69 F.Supp.3d at 193, and the Court denied summary judgment to both parties on that count after finding that new evidence submitted by PLM, which the Court properly reviewed de novo, created a genuine dispute as to whether the \"tacking” doctrine provided PLM with priority of use as to the Indian Girl mark, see id. at 194-96." }, { "docid": "16754522", "title": "", "text": "fact by submitting an affidavit based upon the affiant’s personal knowledge. As the Seventh Circuit pointed out in Spraying Systems Co. v. Delavan, Inc., 975 F.2d at 391, “the thorough conviction standard cannot apply to the TTAB’s grant of summary judgment.” When the TTAB grants summary judgment it does not make findings of fact; rather, it applies Federal Rule of Evidence 56 and concludes as a matter of law that there are no material issues of fact in dispute. See id. at 391-92; see also Sunmatch Indus. Co. v. Material Supply Int’l, Inc., Cancellation. No. 20,482, at 4-5 (T.T.A.B.1994). (applying Rule 56 in this ease); cf. 37 C.F.R. § 2.116(a) (“Except as otherwise provided, and wherever applicable and appropriate, procedure and practice in inter partes proceedings shall be governed by the Federal Rules of Civil Procedure”). Moreover, courts apply the thorough conviction standard to the TTAB’s findings of fact largely in deference to the TTAB’s expertise in handling trademark cases! There is ho reason, however, for the district court to defer to the TTAB when that body grants summary judgment; the district court is just as able as the TTAB to determine an issue of law. We conclude that because the TTAB granted summary judgment to Sunmatch on the issue of who owned the SUNTECH trademark, the district court upon remand should review the decision of the TTAB based upon a true de novo standard, as it would any question of law. As the petitioner seeking cancellation before the TTAB, Sunmatch had the burden of proving by a preponderance of the evidence that it owned the SUNTECH mark. See, e.g., Cervecería Centroamericana, S.A. v. Cervecería India, Inc., 892 F.2d 1021,1023 (Fed.Cir.1989); Massey Junior College, Inc. v. Fashion Inst, of Tech., 492 F.2d 1399, 1402-04, 181 U.S.P.Q. 272 (1974); see also 3 McCarthy, supra, § 20:64, at 20-106 (petitioner to cancel must rebut presumption of validity by preponderance of evidence). Because the TTAB decided against MSI and MSI sought review of that decision in district court, we think MSI had the burden of going forward, that is, of submitting to the" }, { "docid": "23523429", "title": "", "text": "the administrative record. Appellant’s Br. at 7 & 8. On the other hand, CAE, Inc. maintains that, in light of the “extensive new evidence” presented in the district court proceedings, the court correctly applied the thorough conviction standard to the TTAB’s factfinding. Appellee’s Br. at 15. We cannot accept either of these contentions. After Zurko, it is clear that neither the clearly erroneous nor the thorough conviction standard apply; instead, Zurko instructs that we must apply the APA when reviewing agency factfinding. See Zurko, 527 U.S. at 165, 119 S.Ct. 1816. In addition, we agree with the Federal Circuit’s resolution of the question left open in Zurko as to which prong of § 706(2) applies. When a court’s review of an agency’s factfinding is circumscribed by the agency record, as the Federal Circuit explained, the substantial evidence standard in § 706(2)(E) applies. See In re Gartside, 203 F.3d 1305, 1312-15 (Fed.Cir.2000); see also Zurko, 527 U.S. at 164, 119 S.Ct. 1816 (noting that if an agency’s decision is “bound up with a record-based factual conclusion,” the reviewing court applies the substantial evidence standard); On-Line Careline, 229 F.3d at 1085 (reviewing TTAB factfinding for substantial evidence); Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1327 (Fed.Cir.2000) (same). Cf. 6 West Ltd. Corp. v. NLRB, 237 F.3d 767, 777 (7th Cir.2001) (applying the substantial evidence standard to finding of fact made by the National Labor Relations Board); Powers v. Apfel, 207 F.3d 431, 434 (7th Cir.2000) (Social Security Administration); Malek v. INS, 198 F.3d 1016, 1021 (7th Cir.2000) (Board of Immigration Appeals); Hoffman Homes, Inc. v. Administrator, U.S. EPA, 999 F.2d 256, 261 (7th Cir.1993) (Environmental Protection Agency); Kraft, Inc. v. FTC, 970 F.2d 311, 316-18 (7th Cir.1992) (Federal Trade Commission); Stanley v. Bd. of Governors of Fed. Reserve Sys., 940 F.2d 267, 272 (7th Cir.1991) (Federal Reserve Board). We see no need to depart from that rule here. Accordingly, we conclude that findings of fact by the TTAB properly are reviewed under the substantial evidence standard set forth in § 706(2)(E) of the APA. Accord On-Line Careline, 229 F.3d at 1085." }, { "docid": "23523427", "title": "", "text": "fact were reviewed for clear error). Under the majority rule, the district court reviewed de novo any new evidence presented, but it weighed that evidence against the TTAB’s findings under the “thorough conviction” standard. Spraying Sys., 975 F.2d at 391. In 1999, however, the Supreme Court held in Dickinson v. Zurko, 527 U.S. 150, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999), that the proper standard of judicial review of findings of fact made by the PTO is not the stricter “clearly erroneous” standard but rather the slightly more deferential standard of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Zurko, 527 U.S. at 165, 119 S.Ct. 1816. Section 706 of the APA sets forth the standards governing the scope of judicial review of agency factfinding: The reviewing court shall- (2) hold unlawful and set aside agency findings found to be- (A) arbitrary, capricious, [or] an abuse of discretion, or ... (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute.... In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party. 5 U.S.C. § 706. Although the Court left open the question of which APA standard applied-\"arbitrary, capricious, or abuse of discretion\" under § 706(2)(A) or \"substantial evidence\" under § 706(2)(E)-the Federal Circuit has concluded that, after Zur-1w, it will review TTAB findings of fact for substantial evidence. See On-Line Care-line, 229 F.3d at 1085. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). This court has yet to interpret and to apply Zurko, which went unnoticed by the district court and the parties in this case. Clean Air contends, however, that, in the absence of “credible ... material factual evidence” that the TTAB’s findings were clearly erroneous, the district court erred in “reweighing” the evidence in" }, { "docid": "23523424", "title": "", "text": "392. B. Standard of Review The district court’s decision involved both the entry of summary judgment and review of an agency decision: TTAB’s dismissal of CAE, Inc.’s opposition to Clean Air’s registration of CAE as a trademark. Thus, we first must determine which standard of review the district court should have applied to the TTAB’s decision. 1. District Court’s Review of TTAB’s Decision We first determine which standard of review applies to a district court’s review of a TTAB decision, and we then evaluate whether the district court applied that standard in this case. As described above, the Lanham Act provides two avenues for review of TTAB decisions: review by the Federal Circuit on the closed record of the TTAB proceedings, see 15 U.S.C. § 1071(a)(4); or review by the district court with the option of presenting additional evidence and raising additional claims, see 15 U.S.C. § 1071(b)(1); see also Spraying Sys., 975 F.2d at 390; 3 McCarthy § 21:20, at 21-25 to 21-26. In the latter scenario, the district court sits in a dual capacity. It is an appellate reviewer of facts found by the TTAB and is also a fact-finder based on new evidence introduced to the court. See 3 McCarthy, § 21:20, at 21-26. Although the district court’s review of the TTAB’s decision is considered de novo when the parties present new evidence and assert additional claims, the district court also must afford deference to the fact findings of the TTAB. See Spraying Sys., 975 F.2d at 391; 3 McCarthy § 21:21, at 21-27 to 21-28. The degree of deference that the district court must afford the TTAB’s findings of fact is a matter that recently has come under scrutiny. Before 1999, a majority of courts, including this one, followed the thorough conviction standard established in Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894). Under that standard, the TTAB’s determination “ ‘must be accepted as controlling upon a finding of fact about confusing similarity of trademarks, unless the contrary is established by testimony which in character and amount carries thorough conviction.’" }, { "docid": "23523426", "title": "", "text": "” Spraying Sys., 975 F.2d at 391 (quoting Fleetwood Co. v. Hazel Bishop, Inc., 352 F.2d 841, 844 (7th Cir.1965)); see also Material Supply Int’l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983, 990 (D.C.Cir.1998) (holding that the thorough conviction standard applies to review of the TTAB’s resolution of disputed issues of fact); Coach House Rest., Inc. v. Coach & Six Rest, Inc., 934 F.2d 1551, 1557 (11th Cir.1991) (same); Wells Fargo & Co. v. Stagecoach Prop., Inc., 685 F.2d 302, 306 (9th Cir.1982) (same); Aloe Creme Lab., Inc. v. Tex. Pharmacal Co., 335 F.2d 72, 74 (5th Cir.1964) (same); Wilson Jones Co. v. Gilbert & Bennett Mfg. Co. , 332 F.2d 216, 218 (2d Cir.1964) (same); Century Distilling Co. v. Continental Distilling Co., 106 F.2d 486, 489 (3d Cir.1939) (same); 3 McCarthy § 21:22, at 21-29 to 21-30 (noting that, before 1999, most courts used Morgan’s “thorough conviction” standard); but cf. On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1084 (Fed.Cir.2000) (noting that, in the Federal Circuit before 1999, TTAB questions of fact were reviewed for clear error). Under the majority rule, the district court reviewed de novo any new evidence presented, but it weighed that evidence against the TTAB’s findings under the “thorough conviction” standard. Spraying Sys., 975 F.2d at 391. In 1999, however, the Supreme Court held in Dickinson v. Zurko, 527 U.S. 150, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999), that the proper standard of judicial review of findings of fact made by the PTO is not the stricter “clearly erroneous” standard but rather the slightly more deferential standard of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Zurko, 527 U.S. at 165, 119 S.Ct. 1816. Section 706 of the APA sets forth the standards governing the scope of judicial review of agency factfinding: The reviewing court shall- (2) hold unlawful and set aside agency findings found to be- (A) arbitrary, capricious, [or] an abuse of discretion, or ... (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of" }, { "docid": "23610113", "title": "", "text": "district court is in part an appeal and in part a new action, since additional relief may be requested and additional evidence may be presented. See 2 J. Thomas McCarthy, Trademarks and Unfair Competition § 21:5, at 14-15 (2d ed. 1984).) In the district court, Spraying Systems again pursued its claim of infringement of its “-JET” trademarks and, in addition, sought protection of its color-coding scheme as a trademark and its overall product image as trade dress. The district court applied a “thorough conviction” standard to the TTAB’s decision on infringement of Spraying Systems’ “-JET” trademarks, concluding that summary judgment for Delavan was proper. As to the infringement claim premised on Spraying Systems’ color-coding scheme and the trade dress claim, the court found no genuine issue of material fact and entered summary judgment against Spraying Systems. Spraying Systems Co. v. Delavan, Inc., 762 F.Supp. 772 (N.D.Ill.1991). •Spraying Systems appeals, challenging several aspects of the district court’s decision. II. We must begin by addressing the standard of review, an issue that has generated some confusion in this case. The review mechanisms of 15 U.S.C. § 1071 are unique. Review of a TTAB decision in a federal district court is considered de novo because the parties are permitted to present new evidence and even enlarge the pleadings. See Teter, Inc. v. Rheem Mfg. Co., 334 F.2d 784, 786 (7th Cir.1964); Standard Pressed Steel Co. v. Midwest Chrome Process Co., 418 F.Supp. 485, 489 (N.D.Ill.1976). That characterization can be misleading, however, because deference is owed to the findings of the TTAB. In particular, this Court has declared that the Board’s decision “must be accepted as controlling upon a finding of fact about confusing similarity of trademarks, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Fleetwood Co. v. Hazel Bishop, Inc., 352 F.2d 841, 844 (7th Cir.1965) (citing Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773-74, 38 L.Ed. 657 (1894)). Contrary to Spraying Systems’ assertion, the “vast majority of courts” apply the thorough conviction standard to such findings made by the Patent and Trademark" }, { "docid": "16754521", "title": "", "text": "120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894), ie., finding of fact made by TTAB “must be accepted as controlling, unless the contrary is established by evidence ‘which, in character and amount carries thorough conviction’ ”); accord, Spraying Sys., 975 F.2d at 391; Coach House Restaurant, Inc. v. Coach & Six Restaurants, Inc., 934 F.2d 1551, 1557 (11th Cir.1991); Wells Fargo & Co. v. Stagecoach Properties, Inc., 685 F.2d 302, 306 (9th Cir.1982); Aloe Creme Laboratories, Inc. v. Texas Pharmacal Co., 335 F.2d 72, 74 (5th Cir.1964); Wilson Jones Co., 332 F.2d at 218; Century Distilling Co. v. Continental Distilling Co., 106 F.2d 486, 489 (3d Cir.1939); see also 3 McCarthy; supra, § 21:22, at 21-27 (“vast majority of courts” apply the thorough conviction standard); 1 Jerome Gilson & Jeffrey M. Samuels, Trademark Protection & Practice § 3.05[4](b)(ii), at 3-200 (1997) (same). In this case, however; the TTAB did not resolve any disputed issue of fact. Rather, it entered summary judgment in favor of Sunmatch because MSI failed to raise a material issue of fact by submitting an affidavit based upon the affiant’s personal knowledge. As the Seventh Circuit pointed out in Spraying Systems Co. v. Delavan, Inc., 975 F.2d at 391, “the thorough conviction standard cannot apply to the TTAB’s grant of summary judgment.” When the TTAB grants summary judgment it does not make findings of fact; rather, it applies Federal Rule of Evidence 56 and concludes as a matter of law that there are no material issues of fact in dispute. See id. at 391-92; see also Sunmatch Indus. Co. v. Material Supply Int’l, Inc., Cancellation. No. 20,482, at 4-5 (T.T.A.B.1994). (applying Rule 56 in this ease); cf. 37 C.F.R. § 2.116(a) (“Except as otherwise provided, and wherever applicable and appropriate, procedure and practice in inter partes proceedings shall be governed by the Federal Rules of Civil Procedure”). Moreover, courts apply the thorough conviction standard to the TTAB’s findings of fact largely in deference to the TTAB’s expertise in handling trademark cases! There is ho reason, however, for the district court to defer to the TTAB when" }, { "docid": "23610114", "title": "", "text": "this case. The review mechanisms of 15 U.S.C. § 1071 are unique. Review of a TTAB decision in a federal district court is considered de novo because the parties are permitted to present new evidence and even enlarge the pleadings. See Teter, Inc. v. Rheem Mfg. Co., 334 F.2d 784, 786 (7th Cir.1964); Standard Pressed Steel Co. v. Midwest Chrome Process Co., 418 F.Supp. 485, 489 (N.D.Ill.1976). That characterization can be misleading, however, because deference is owed to the findings of the TTAB. In particular, this Court has declared that the Board’s decision “must be accepted as controlling upon a finding of fact about confusing similarity of trademarks, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Fleetwood Co. v. Hazel Bishop, Inc., 352 F.2d 841, 844 (7th Cir.1965) (citing Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773-74, 38 L.Ed. 657 (1894)). Contrary to Spraying Systems’ assertion, the “vast majority of courts” apply the thorough conviction standard to such findings made by the Patent and Trademark Office. 2 McCarthy § 21:5, at 17. Spraying Systems argues that the thorough conviction standard should not apply to new evidence presented in the district court. It is true that new evidence must itself be considered de novo by the district court — in the sense of being fairly weighed without placing a thumb on the scales or dismissing it out of hand. But the evidence must then be weighed against the Board’s findings under the thorough conviction standard. Unless the new evidence leads to a thorough conviction that a finding of the Board is incorrect, that finding is controlling. Velsicol Chemical Corp. v. Monsanto Co., 579 F.2d 1038, 1042 (7th Cir.1978); Watkins Prods., Inc. v. Sunway Fruit Prods., Inc., 311 F.2d 496, 498-99 (7th Cir.1962), cert. denied, 373 U.S. 904, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963); Yale Elec. Corp. v. Robertson, 26 F.2d 972, 973 (2d Cir.1928) (L. Hand, J.); 2 McCarthy § 21:5, at 17. Finally, Spraying Systems argues that it is illogical for the district court’s review of the TTAB’s grant" }, { "docid": "23523423", "title": "", "text": "new action, which allows the parties to request additional relief and to submit new evidence. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 390 (7th Cir.1992); 3 McCarthy § 21:20, at 21-26. The courts of appeals, other than the Federal Circuit, have appellate jurisdiction to review the district court’s decision. See 15 U.S.C. § 1121(a). Under the Lanham Act, a party may assert claims for, inter alia, trademark infringement, see 15 U.S.C. § 1114(1) (in this case, Count I), or unfair competition, see 15 U.S.C. § 1125(a) (in this case, Count II). To prevail on either claim, a plaintiff must establish that (1) its mark is protectable and (2) the defendant’s use of the mark is likely to cause confusion among consumers. See Eli Lilly, 233 F.3d at 461; Smith Fiberglass Prod., Inc. v. Ameron, Inc., 7 F.3d 1327, 1329 (7th Cir.1993). Likelihood of confusion is also the central factual issue in reviewing a decision by the TTAB to sustain or dismiss opposition to a trademark registration. See Spraying Sys., 975 F.2d at 392. B. Standard of Review The district court’s decision involved both the entry of summary judgment and review of an agency decision: TTAB’s dismissal of CAE, Inc.’s opposition to Clean Air’s registration of CAE as a trademark. Thus, we first must determine which standard of review the district court should have applied to the TTAB’s decision. 1. District Court’s Review of TTAB’s Decision We first determine which standard of review applies to a district court’s review of a TTAB decision, and we then evaluate whether the district court applied that standard in this case. As described above, the Lanham Act provides two avenues for review of TTAB decisions: review by the Federal Circuit on the closed record of the TTAB proceedings, see 15 U.S.C. § 1071(a)(4); or review by the district court with the option of presenting additional evidence and raising additional claims, see 15 U.S.C. § 1071(b)(1); see also Spraying Sys., 975 F.2d at 390; 3 McCarthy § 21:20, at 21-25 to 21-26. In the latter scenario, the district court sits in a dual" }, { "docid": "23523430", "title": "", "text": "the reviewing court applies the substantial evidence standard); On-Line Careline, 229 F.3d at 1085 (reviewing TTAB factfinding for substantial evidence); Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1327 (Fed.Cir.2000) (same). Cf. 6 West Ltd. Corp. v. NLRB, 237 F.3d 767, 777 (7th Cir.2001) (applying the substantial evidence standard to finding of fact made by the National Labor Relations Board); Powers v. Apfel, 207 F.3d 431, 434 (7th Cir.2000) (Social Security Administration); Malek v. INS, 198 F.3d 1016, 1021 (7th Cir.2000) (Board of Immigration Appeals); Hoffman Homes, Inc. v. Administrator, U.S. EPA, 999 F.2d 256, 261 (7th Cir.1993) (Environmental Protection Agency); Kraft, Inc. v. FTC, 970 F.2d 311, 316-18 (7th Cir.1992) (Federal Trade Commission); Stanley v. Bd. of Governors of Fed. Reserve Sys., 940 F.2d 267, 272 (7th Cir.1991) (Federal Reserve Board). We see no need to depart from that rule here. Accordingly, we conclude that findings of fact by the TTAB properly are reviewed under the substantial evidence standard set forth in § 706(2)(E) of the APA. Accord On-Line Careline, 229 F.3d at 1085. The district court did not have the benefit of this clarification at the time it rendered its decision; therefore, we must determine whether, in substance, the district court’s review of the TTAB’s decision was consistent with Zurko. At the beginning of its analysis, the district court recognized that its review of the newly, presented evidence was de novo, but it also acknowledged that the TTAB’s factfinding was controlling “ ‘unless the contrary is established by testimony which in character and amount carries thorough conviction.’ ” R.49 at 16 (quoting Spraying Sys., 975 F.2d at 391), The court first outlined the newly presented evidence and then, with reference to the TTAB’s findings, discussed how that evidence required a different conclusion than that reached by the TTAB. In conclusion, the court stated that it had “given deference to the [TTAB’s] decision and [was] still left with a firm, thorough conviction that the [TTAB’s] decision was incorrect.” R.49 at 25. Thus, the district court did not apply the clearly erroneous standard rejected by the Supreme Court in Zurko," }, { "docid": "9422096", "title": "", "text": "“Board”) to cancel the two registrations for COLOR JET in Consolidated Cancellation 16,950. On September 14, 1989 the Board granted Delavan’s motion for summary judgment and (in the “Decision”) dismissed Spraying System’s Petition for Cancellation. Spraying Systems then filed this action pursuant to Lanham Act § 21(b) (15 U.S.C. § 1071(b)) within 60 days of the Board’s Decision. Cancellation Proceedings This action is in part an appeal from the Decision. In that respect this Court reviews decisions of the Board de novo, and the parties can introduce new evidence not brought before the Board (Dow Corning Corp. v. Applied Power Industries, Inc., 322 F.Supp. 943, 944 (N.D.Ill.1970)). However, it is “well settled” that a Board decision “must be accepted as controlling upon a finding of fact about confusing similarity of trademarks, unless the contrary is established by testimony which in character and amount carries thorough conviction” (Fleetwood Co. v. Hazel Bishop, Inc., 352 F.2d 841, 844 (7th Cir.1965), citing Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773-74, 38 L.Ed. 657 (1894)). In the action before the Board, it found factually (1) Spraying Systems' priority in use of trademark (which Delavan does not deny), (2) similarity of the goods, channels of trade and purchasers (all three of which have been conceded by Delavan in both that and this action), (3) substantial use and advertising by Spraying Systems of its trademarks and (4) no instances of actual confusion (because none were shown) (Decision 8-9, Complaint Ex. C). Spraying Systems argued to the Board that the combination of the “-JET” suffix and the color coding on both companies’ spraying nozzles, as well as use of the word “COLOR” in Delavan’s trademark, made consumer confusion likely. But because Spraying Systems did not plead that color coding was a trademark, the Board found that aspect did not raise a genuine issue of material fact (id. at 9-10). Instead it considered likelihood of confusion only between the registered trademarks themselves, noting the sole similarity to be the “-JET” suffix. On that score Delavan presented evidence of 48 third-party trademark registrations bearing the suffix" }, { "docid": "9422095", "title": "", "text": "has all of those colors with the exception of white and also has tan, light blue and light green. However, the two systems do not use the same color to designate a particular nozzle capacity. Spraying Systems and Delavan use different packaging in the sale and distribution of their goods (though the goods themselves are otherwise admittedly similar in appearance). Spraying Systems’ packaging is yellow with black labeling, while Delavan’s is red, white and blue. Each company clearly marks the source of the product with the relevant trademark “Spraying Systems” or “Delavan” on the packaging. In 1983 there was a brief exchange of letters between lawyers for the companies, in which Spraying Systems requested that Delavan cease and desist in its efforts to register its COLOR JET trademark. When the COLOR JET mark appeared in Dela-van’s December 1988 catalog, it was Spraying Systems’ first indication of actual marketing of the COLOR JET mark. On January 26, 1988 Spraying Systems petitioned the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (the “Board”) to cancel the two registrations for COLOR JET in Consolidated Cancellation 16,950. On September 14, 1989 the Board granted Delavan’s motion for summary judgment and (in the “Decision”) dismissed Spraying System’s Petition for Cancellation. Spraying Systems then filed this action pursuant to Lanham Act § 21(b) (15 U.S.C. § 1071(b)) within 60 days of the Board’s Decision. Cancellation Proceedings This action is in part an appeal from the Decision. In that respect this Court reviews decisions of the Board de novo, and the parties can introduce new evidence not brought before the Board (Dow Corning Corp. v. Applied Power Industries, Inc., 322 F.Supp. 943, 944 (N.D.Ill.1970)). However, it is “well settled” that a Board decision “must be accepted as controlling upon a finding of fact about confusing similarity of trademarks, unless the contrary is established by testimony which in character and amount carries thorough conviction” (Fleetwood Co. v. Hazel Bishop, Inc., 352 F.2d 841, 844 (7th Cir.1965), citing Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773-74, 38 L.Ed. 657 (1894)). In" }, { "docid": "16754519", "title": "", "text": "the district court. B. Burden of Proof in MSI’s Challenge to the TTAB Decision MSI argues that the district court incorrectly placed upon it the burden of proof in its challenge to the decision of the TTAB. A party to a cancellation proceeding who is dissatisfied with a decision of the TTAB has two options: First, the party may appeal to the United States Court of Appeals for the Federal Circuit. 15 U.S.C. § 1071(a)(1). Second, the party may “have remedy by a civil action” in district court. Id. § 1071(b)(1). With respect to these two options, a leading treatise states: Congress gave such alternate remedies of review because each possessed its own unique advantages. If appeal is made to the Federal Circuit, the case proceeds on a closed record and no new evidence is permitted. But if review is sought in a federal [district] court, review is a form of “de novo” scrutiny and new evidence is permitted. 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 21:20, at 21-24 (4th ed.1997); see also 15 U.S.C. § 1071(b)(3) (in district court the record before the TTAB “shall be admitted on motion of any party ... without prejudice to the right of any party to take further testimony”). Although courts sometimes refer to the district court’s review of the TTAB’s decision as a “de novo” proceeding, see, e.g., Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 391 (7th Cir.1992); Wilson Jones Co. v. Gilbert & Bennett Mfg. Co., 332 F.2d 216, 218 (2d Cir.1964), that is something of a misnomer: While district court review is called “de novo” because new evidence may be introduced, it is a unique procedure because unlike a true de novo proceeding, findings of fact made by the [TTAB] are given great weight and not upset unless new evidence is introduced which carries thorough conviction. 3 McCarthy, supra, § 21:21, at 21-26; see Esso Standard Oil Co. v. Sun Oil Co., 229 F.2d 37, 40 (D.C.Cir.1956) (adopting standard of review for decisions of Patent Office set forth in Morgan v. Daniels, 153 U.S." } ]

[ { "docid": "22700815", "title": "", "text": "February 14, 1954, and ending December 31, 1958. The allegations of the cross claim were essentially as follows: Prior to the 1950 Wage Agreement between the operators and the union, severe controversy had existed in the industry, particularly over wages, the welfare fund and the union’s efforts to control the working time of its members. Since 1950, however, relative peace has existed in the industry, all as the result of the 1950 Wage Agreement and its amendments and the additional understandings entered into between UMW and the large operators. Allegedly the parties considered overproduction to be the critical problem of the coal industry. The agreed solution was to be the elimination of the smaller companies, the larger companies thereby controlling the market. More specifically, the union abandoned its efforts to control the working time of the miners, agreed not to oppose the rapid mechanization of the mines which would substantially reduce mine employment, agreed to help finance such mechanization and agreed to impose the terms of the 1950 agreement on all operators without regard to their ability to pay. The benefit to the union was to be increased wages as productivity increased with mechanization, these increases to be demanded of the smaller companies whether mechanized or not. Royalty payments into the welfare fund were to be increased also, and the union was to have effective control over the fund’s use. The union and large companies agreed upon other steps to exclude the marketing, production, and sale of nonunion coal. Thus the companies agreed not to lease coal lands to nonunion operators, and in 1958 agreed not to sell or buy coal from such companies. The companies and the union jointly and successfully approached the Secretary of Labor to obtain establishment under the Walsh-Healey Act, as amended, 49 Stat. 2036, 41 U. S. C. § 35 et seq. (1958 ed.), of a minimum wage for employees of contractors selling coal to the TVA, such minimum wage being much higher than in other industries and making it difficult for small companies to compete in the TYA term contract market. At a later" } ]

[ { "docid": "18189169", "title": "", "text": "situation was created not included within the exemptions of the Clayton and Norris-LaGuardia Acts”. Id at 809, 65 S.Ct. at 1540. Of controlling significance to the issues of the present lawsuit is the recent case of United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626. The theories of the parties and the issues there involved bear a close similarity to the theories and issues here involved. Upon the same day the Supreme Court also decided the case of Local Union No. 189, etc. Meat Cutters Union v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640. These cases must be read together to understand their full import. Even then some uncertainty as to the full import must persist, as these cases produced five .separate opinions expressing differing views. In Pennington the U.M.W. had sued a coal producer from the Northern Tennessee coal field for welfare fund payments. Pennington counterclaimed, alleging that the union had violated the Sherman Act by conspiring with certain large coal companies to drive smaller mine operators, including the defendant, from the coal industry. A verdict was returned against the U.M.W. Upon appeal the Supreme Court denied the U.M.W.’s claim to exemption from the antitrust laws for its activities. The relevancy of the case to the issues here involved can best be stated by quoting the following excerpts from the opinion of Mr. Justice White, who wrote'for a majority of the Court: “We have said that a union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior. But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. * * * ****** “ * * * This Court has recognized that a legitimate aim of any national labor organization" }, { "docid": "18903841", "title": "", "text": "Mr. Justice Goldberg’s concurring opinion in Jewel Tea, supra at 697, upon which defendants rely for this notion, makes clear that his arguments all assume the existence of a collective bargaining agreement, and cannot be read in any reasonable fashion as support for the league’s argument in this regard. Moreover, the Court’s opinion in Pennington, from which Justice Goldberg’s concurrence in Jewel Tea also serves as a dissent, specifically states that an agreement resulting from union-employer negotiations is not “automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement.” Pennington, supra, 381 U.S. at 664-665, 85 S.Ct. at 1590. A fortiori, if a completed agreement is not exempt from antitrust scrutiny, then a mandatory subject upon which an agreement has not yet been concluded cannot be exempt. And in any event, it seems apparent that the policy of the exemption — allowing the collective bargaining process, proceeding unfettered by antitrust restraints, to determine wages, hours, and terms and conditions of employment — does not require and would not be served by extending the exemption to arrangements imposed unilaterally by employers, merely because such arrangements could at some time be settled upon through mandatory collective bargaining. Indeed, the thrust of the cases is quite the opposite: a scheme advantageous to employers and otherwise in violation of the antitrust laws cannot under any circumstances come within the exemption unless and until it becomes part of a collective bargaining agreement negotiated by a union in its own self-interest. Defendants’ argument that plaintiff was not entitled to the protection of the antitrust laws must therefore fail, since the plaintiff entered into his contract with the Redskins prior to the time when the league and the players association (acting as exclusive bargaining agent for the players) reached their initial collective bargaining agreement. And finally in this regard, even if the exemption were viewed as having become operative as to all mandatory subjects of collective bargaining at the first moment there was an exclusive bargaining agent representing the" }, { "docid": "18189294", "title": "", "text": "the northern operators, with the Union giving up its share-of-the-work concern for its members and the industry agreeing to substantial wage and fringe benefit increases, and each party expressing their concern for bringing stability to the coal industry, might lead to the inference that stability was being sought by means of an industry-union conspiracy to suppress or eliminate competition from Lhe smaller operators, it is more reasonable to infer, however, that the agreement reached was the result of the most vigorous unilateral effort each party could muster. A more vigorous clash of interests or a more turbulent demonstration of what appeared to be arms’ length collective bargaining has rarely been recorded in the history of labor-management relations than that which led up to the execution of the 1950 National Bituminous Coal Wage Agreement. That the U.M.W. negotiated the 1950 National Bituminous Coal Wage Agreement with the spokesmen for the major coal producers in the nation and then has uniformly sought to impose the same agreement upon all the rest of the coal industry might reasonably lead to the inference that the U.M.W. had agreed with the major operators that it would impose the national agreement upon the rest of the coal industry. An equally reasonable inference is that the Union was but following the pattern of industry-wide bargaining established since prior to the turn of the century in electing to negotiate the agreement with spokesmen of the major coal producers and was but following its historical policy of national uniformity of labor standards in seeking to impose the national agreement upon all of the industry. In the latter event, no inference of antitrust violation could arise, for, as stated in United Mine Workers v. Pennington, supra, “Unilaterally, and without agreement with any employer group to do so, a union may adopt a uniform wage policy and seek vigorously to implement it even though it may suspect that some of the employers cannot effectively compete if they are required to pay the wage scale demanded by the union.” Wages as an element of price have been expressly removed by Congress from" }, { "docid": "18058773", "title": "", "text": "intent to accomplish a forbidden restraint. United States v. Columbia Steel Company, 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948). In United Mine Workers of America v. Pennington, supra, an alleged conspiracy existed which had as part of its purpose the identical objective that plaintiff, South-East, contends was the object of this particular conspiracy. • That is, that the “union entered into a conspiracy with the large operators to impose the agreed-upon wages and royalty scales upon the smaller, non-union operators, regardless of their ability to pay and regardless of whether or not the union represented the employees of these companies, all for the purpose of eliminating them from the industry, limiting production and preempting the market for the. large unionized operators.” Respecting this type of conspiracy the Supreme Court observed at 381 U.S. 665, 666, 85 S.Ct. 1591: “[A] union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior (Footnote omitted). But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy.” The Supreme Court then made the following analogy: “One could hardly contend, for example, that one group of employers could lawfully demand that the union impose on other employers wages that were significantly higher than those paid by the requesting employers, or a system of computing wages that, because of differences in methods of production, would be more costly to one set of employers than to another. The anticompetitive potential of such a combination is obvious, but is little more severe than what is alleged to have been the purpose and effect of the conspiracy in" }, { "docid": "11872734", "title": "", "text": "the plaintiffs failed to properly plead such a conspiracy. While the plaintiffs’ complaint uses the word “conspiracy” repeatedly, it cannot fairly be read to remove the alleged conduct from the reach of the statutory exemption. Essentially, the plaintiffs seek to infer a conspiracy between Edison, Newberg and the union on the basis of the escrow agreement reached between the contractors and the union. Yet, more than this is needed to plead a conspiracy that would remove the alleged agreement from the coverage of the labor exemption. Where plaintiffs base claimed conspiracies solely upon the existence of a collective bargaining agreement concerning subjects of mandatory bargaining, courts have generally held that these allegations are insufficient to remove the statutory exemption from union conduct. “The mere combination by a union with ‘non-labor groups’ does not violate the Sherman Act. To hold otherwise would invalidate collective bargaining.” Bodine Produce, Inc. v. United Farm Workers Organizing Committee, 494 F.2d 541, 558 (9th Cir. 1974). In UMW v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), small mine operators brought an ¿ntitrust action against the coal miners’ union. The basis of the complaint was that large employers and the union had entered into an industry-wide collective bargaining agreement that imposed a wage scale that small operators would be unable to pay. The plaintiffs claimed that this had been done for the purpose of driving them out of business. The Court began its analysis by noting, in keeping with United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941), that it is “beyond question that a union may conclude a wage agreement with the multi-employer bargaining unit without violating the antitrust laws and that it may as a matter of its own policy, and not by agreement with all or part of the employers of that unit, seek the same wages from other employers.” 381 U.S. at 664, 85 S.Ct. at 1590. The union loses the antitrust labor exemption, however, “when it is clearly shown that it has agreed with one set of employers to impose a certain wage" }, { "docid": "23510695", "title": "", "text": "that the appropriate test is as follows: “The test for applicability of the labor exemption which emerges from Jewel Tea and Pennington, is twofold: 1) Are the challenged practices directed against non-parties to the relationship; if they are not, then 2) are they mandatory subjects of collective bargaining? If the answer to No. 1 is no, and to No. 2 yes, the practices are immune. . . .” NBA Memorandum at 28. Support for this “test” is allegedly found in United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), and Jewel Tea, supra, which presented the Court with the opportunity to re-examine its holdings in Hutcheson and Allen Bradley, supra. In Pennington, a small coal company cross-claimed against the UMW, challenging on antitrust grounds the terms of a multi-employer collective bargaining agreement between the union and other, larger, coal operators. The Court, relying on Allen Bradley, found that the union had lost its exemption when it combined with non-labor groups to eliminate competition from the market. Justice White stated, at 665-66, 85 S.Ct. at 1591, that: “[W]e think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy (emphasis added). There is no statement or suggestion in Pennington that an employer has an exemption from an antitrust suit by its employees, or by any other party. It was assumed that the large coal operators would have been liable regardless of the union’s liability. In Jewel Tea, several unions had entered into identical collective bargaining agreements with all retail employers in the meat industry; the clause in dispute provided for uniform closing hours in all the meat departments. One employer attacked that clause arguing that he had only signed the agreement under threat of strike. As in Pennington, the fundamental question" }, { "docid": "2955477", "title": "", "text": "impose the agreed-upon wage and royalty scales upon the smaller, nonunion operators, regardless of their ability to pay and regardless of whether or not the union represented the employees of these companies, all for the purpose of eliminating them from the industry, limiting production and pre-empting the market for the large, unionized operators.” 381 U.S. at 664, 85 S.Ct. at 1590. It was for that reason that the union’s wage agreement was not exempted from the anti-trust laws. In the present case there is no evidence of a conspiracy between Local 802, or the Federation, and orchestra leaders to eliminate competitors, fix prices or achieve any other commercial restraint, nor was such a finding made by the district judge. Rather, the record establishes that all restraints were instituted unilaterally by the unions and acquiesced in by the orchestra leaders). Nor does the fact that the unions reached agreements with non-labor groups— booking agents, recording companies and others — place this case within the exception. Nevertheless, there is a narrower ground upon which the legality of the unions’ activities must be tested. If the unions coerced orchestra leaders with regard to a matter which is not a “term or condition of employment,” they would not be exempt from the provisions of the Sherman Act, because the Norris-La-Guardia Act affords immunity from the impact of the anti-trust laws only for “labor disputes”; it does not provide a blanket exemption. This rule is readily apparent from the Supreme Court’s disposition of Local Union No. 189 v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596,14 L.Ed.2d 640 (1965), decided the same day as Pennington. In that case, the Meatcutters’ and Butchers’ Union sought to prevent any store in the Chicago area from .selling meat except during the hours of 9:00 A.M. to 6:00 P.M. All members of a bargaining association of stores acceded to the union’s demand except Jewel Tea Co., which held out. The union called a strike against it which thereby forced Jewel Tea to acquiesce. On Jewel Tea’s suit to void this condition in its contract with the union, the" }, { "docid": "18189295", "title": "", "text": "lead to the inference that the U.M.W. had agreed with the major operators that it would impose the national agreement upon the rest of the coal industry. An equally reasonable inference is that the Union was but following the pattern of industry-wide bargaining established since prior to the turn of the century in electing to negotiate the agreement with spokesmen of the major coal producers and was but following its historical policy of national uniformity of labor standards in seeking to impose the national agreement upon all of the industry. In the latter event, no inference of antitrust violation could arise, for, as stated in United Mine Workers v. Pennington, supra, “Unilaterally, and without agreement with any employer group to do so, a union may adopt a uniform wage policy and seek vigorously to implement it even though it may suspect that some of the employers cannot effectively compete if they are required to pay the wage scale demanded by the union.” Wages as an element of price have been expressly removed by Congress from the competitive requirements of the antitrust laws. Labor is not required to become the fulcrum of price competition to avoid a Sherman Act charge, for, as held in Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, an elimination of price competition based upon labor standards is not within the Sherman Act. Moreover, to suppose that national collective bargaining can or will be conducted with other than major producers of an industry is a theory unrelated to the hard realities of a competitive economy. To suppose that major operators can or will be the guardians or protectors of the small and weak in the industry in such national bargaining is also largely a theory unlikely to relate to the realities of a competitive economy. The problems posed to the small and medium sized enterprises by the practice of national collective bargaining would appear real and substantial. However, that their solution lies in the federal antitrust laws as now enacted by Congress is doubtful. The turbulent pattern of bargaining in the" }, { "docid": "11872735", "title": "", "text": "mine operators brought an ¿ntitrust action against the coal miners’ union. The basis of the complaint was that large employers and the union had entered into an industry-wide collective bargaining agreement that imposed a wage scale that small operators would be unable to pay. The plaintiffs claimed that this had been done for the purpose of driving them out of business. The Court began its analysis by noting, in keeping with United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941), that it is “beyond question that a union may conclude a wage agreement with the multi-employer bargaining unit without violating the antitrust laws and that it may as a matter of its own policy, and not by agreement with all or part of the employers of that unit, seek the same wages from other employers.” 381 U.S. at 664, 85 S.Ct. at 1590. The union loses the antitrust labor exemption, however, “when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units.” Id. at 665, 85 S.Ct. at 1590. The Court qualified this statement by noting that Unilaterally, and without agreement with any employer group to do so, a union may adopt a uniform wage policy and seek vigorously to implement it even though it may suspect that some employers cannot effectively compete if they are required to pay the wage scale demanded by the union. The union need not gear its wage demands to wages which the weakest units in the industry can afford to pay. Such union conduct is not alone sufficient evidence to maintain a union-employer conspiracy charge under the Sherman Act. There must be additional direct or indirect evidence of the conspiracy. Id. at 665 n.2, 85 S.Ct. at 1590 n.2 (emphasis added). Thus, the union did not lose its exemption simply by entering into a series of collective bargaining agreements. The agreements alone could not deprive the un ion of the labor antitrust exemption, absent further evidence of a conspiracy. Accord, California Dump Truck Owners Association v." }, { "docid": "5154165", "title": "", "text": "the agreements was demonstrated by the lower prices sought by the manufacturers for sales outside the New York City area and the determination of the plaintiff to challenge the restriction that had foreclosed it from the metropolitan New York City market. In 1965 the Supreme Court decided two challenges to assertions of non-statutory immunity. The exemption did not apply in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), in which the union and large coal producers executed an industry-wide agreement substantially raising wages and rendering continued operation for the small producers difficult. The Court ruled that a union may not conspire with employers who seek to eliminate competitors from an industry even if the union’s part in the scheme is limited to seeking industry-wide uniformity in wages, hours and other working conditions. Id., at 665-66, 85 S.Ct. at 1591. In Pennington’s companion case, Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965), however, the union-employer agreement on food market operating hours was held exempt although no majority supplied the rationale for the decision. Connell Construction Co. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) represents the most recent authoritative treatment of the non-statutory exemption. In Connell immunity was withheld from a union that obtained an agreement from a general contractor not to deal with subcontractors that had no collective bargaining agreement with the union. The contract precluded non-union subcontractors from competing for available work on grounds independent of economic efficiency. Writ ing for the Court, Mr. Justice Powell announced that [t]his kind of direct restraint on the business market has substantial anticompetitive effects, both actual and potential, that would not follow naturally from the elimination of competition over wages and working conditions. It contravenes antitrust policies to a degree not justified by congressional labor policy, and therefore cannot claim a nonstatutory exemption from the antitrust laws. Id., at 625, 95 S.Ct., at 1836. C. Viability of the Antitrust Allegations Before the court must" }, { "docid": "23705107", "title": "", "text": "assurance that we follow the congressional purpose. We know that Congress feared the concentrated power of business organizations to dominate markets and prices. ... A business monopoly is no less such because a union participates, and such participation is a violation of the Act.” Id., at 811. Hence we also adhere to the decision in Pennington: “[T]he relevant labor and antitrust policies compel us to conclude that the alleged agreement between UMW and the large operators to secure uniform labor standards throughout the industry, if proved, was not exempt from the antitrust laws.” 381 U. S., at 669. Where a union, by agreement with one set of employers, insists on maintaining in other bargaining units specified wage standards ruinous to the business of those employers, it is liable under the antitrust laws for the damages caused by its agreed-upon conduct. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. So ordered. In return the operators agreed “that all bituminous coal mined, produced, or prepared by them, or any of them, or procured or acquired by them or any of them under a subcontract arrangement” should be produced under terms and conditions which are as favorable to the employees as those provided for in this contract. In another case, Tennessee Consolidated Coal Co. v. UMW, 416 F. 2d 1192 (CA6 1969), the Court of Appeals stated that the Protective Wage Clause was a “quid pro quo” for the foregoing undertaking of the operators which was described by the court as an agreement “to boycott coal not produced in conformity with the national agreement.” 416 F. 2d, at 1198. The Bituminous Coal Operators Association (BCOA) was formed as a multi-employer collective-bargaining unit in 1950, just after signing of the 1950 NBCWA. Member employers ranged from the small to the large, though its members mined about 50% of U. S. bituminous coal. It formed a “negotiating committee” analogous to the UMW’s “policy committee,” to represent member employers at the bargaining table. Ramsey v. UMW, 265 F. Supp. 388, 407 (ED Tenn. 1967)." }, { "docid": "18058772", "title": "", "text": "the Restraint UMW and Consol claim they were prejudiced by the absence of an instruction to the jury that only undue or unreasonable restraints of trade or competition are grounds for finding a Sherman Act violation. Usually, to find that a violation of the Sherman Act has occurred, the restraint of trade or competition resulting from certain acts committed by the accused parties must be “unreasonable.” See generally, Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); Apex Hosiery Company v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940); Lewis v. Pennington, supra. However, there are several types of restraints of trade which are per se unreasonable. See e. g., United States v. Trenton Potteries Company, 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927); United States v. Socony-Vacuum Oil Company, Inc., supra; United States v. Consolidated Laundries Corporation, 291 F.2d 563 (2nd Cir. 1961). Other restraints, while reasonable on their face, become unreasonable when they are accompanied with a specific intent to accomplish a forbidden restraint. United States v. Columbia Steel Company, 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948). In United Mine Workers of America v. Pennington, supra, an alleged conspiracy existed which had as part of its purpose the identical objective that plaintiff, South-East, contends was the object of this particular conspiracy. • That is, that the “union entered into a conspiracy with the large operators to impose the agreed-upon wages and royalty scales upon the smaller, non-union operators, regardless of their ability to pay and regardless of whether or not the union represented the employees of these companies, all for the purpose of eliminating them from the industry, limiting production and preempting the market for the. large unionized operators.” Respecting this type of conspiracy the Supreme Court observed at 381 U.S. 665, 666, 85 S.Ct. 1591: “[A] union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust" }, { "docid": "2935399", "title": "", "text": "exempt from the Sherman Act was that the large companies together with the Union agreed not to lease coal lands to non-union operators, and agreed not to sell or buy coal from such companies. 381 U.S. at 660 and 674, 85 S.Ct. 1585. This allegation was undoubtedly based, in part at least, upon a land-lease provision contained in an amendment to the National Agreement and upon provisions of the Protective Wage Clause which was inserted in the National Agreement in 1958. However, plaintiffs do not on this appeal advance a claim of a concerted refusal to deal, and a review of the record in light of the District Court’s finding concerning these clauses (257 F.Supp. at 862) demonstrates that no Sherman violation could be founded on those clauses under Hutcheson, supra, and Allen Bradley, supra. Plaintiffs do, however, rely on the provisions of the Protective Wage Clause of 1958 in support of their contention that the Union unlawfully conspired with the Bituminous Coal Operators Association (herein the “BCOA”) to restrain and monopolize trade in the coal industry. Plaintiffs’ principle contention is that the UMW, in combination with the BCOA, agreed to impose the wage and royalty scales set forth in the National Agreement upon all operators regardless of their ability to pay. One issue presented is whether the District Court properly held “that the Pennington case teaches that it is necessary to find predatory intent to drive small coal operators out of business in order to hold the employer and Union for a violation of the Sherman Act.” In Pennington the Supreme Court, in an opinion by Mr. Justice White and joined by Mr. Chief Justice Warren and Mr. Justice Brennan, stated: “We have said that a union may make wage agreements with a multi-em-ployer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior. But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that" }, { "docid": "9633944", "title": "", "text": "to restrain trade in and monopolize the supply of electrical equipment in the New York City area. While undoubtedly the “hot cargo” clause contained in the collective bargaining agreement furthered the union interests, the Court held that “ . . . Congress never intended that unions could, consistently with the Sherman Act, aid non-labor groups to create business monopolies and to control the marketing of goods and services.”' 325 U.S. at 808, 65 S.Ct. at 1539, Moreover, the Court continued, “ . . . when the unions participated with a combination of business men who had complete power to eliminate all competition among others, a situation was created not included within the exemptions of the Clayton and Norris-LaGuardia Acts.” 325 U.S. at 809, 65 S.Ct. at 1540. Finally, the Court remarked: “The primary objective of all the Anti-trust legislation has been to preserve business competition and to proscribe business monopoly. It would be a surprising thing if Congress, in order to prevent a misapplication of that legislation to labor unions, had bestowed upon such unions complete and unreviewable authority to aid business groups to frustrate its primary objective. For if business groups, by combining with labor unions, can fix prices and divide up markets, it was little more than a futile gesture for Congress to prohibit price fixing by business groups themselves.” 325 U.S. at 809-810, 65 S.Ct. at 1540. The Supreme Court was again presented the opportunity to examine the Allen Bradley doctrine in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The Court reaffirmed the labor exemption position previously adopted in Allen Bradley and made it indisputably clear that “ . . . [a collective bargaining] agreement resulting from union-employer negotiations is [not] automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement.” 381 U.S. at 664-665, 85 S.Ct. at 1590. In invalidating the wage scale the union sought to impose on all the coal mine operators in Pennington, the Court further stated" }, { "docid": "2955476", "title": "", "text": "Co. was a case involving a conspiracy between businessmen and a labor union to prevent goods produced outside of the New York area from being sold within that area. The purpose of this compact was to create a local business monopoly. For a union’s activity to fall outside of the protection of the definition of a “labor dispute” in § 13 of the Norris-LaGuardia Act (see footnote 3, supra), it must be shown that there was a conspiracy with a “non-labor group.” That principle was reaffirmed by the opinion of the Court in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585,14 L.Ed.2d 626 (1965). Three members of the Court in a separate concurring opinion concluded that the trier could infer such a conspiracy from the fact of an industry-wide collective bargaining agreement which tended to achieve an unlawful restraint. See the concurring opinion, 381 U.S. at 673, 85 S.Ct. 1585. In Pennington, the claim was that the United Mine Workers had “entered into a conspiracy with the large [coal mine] operators to impose the agreed-upon wage and royalty scales upon the smaller, nonunion operators, regardless of their ability to pay and regardless of whether or not the union represented the employees of these companies, all for the purpose of eliminating them from the industry, limiting production and pre-empting the market for the large, unionized operators.” 381 U.S. at 664, 85 S.Ct. at 1590. It was for that reason that the union’s wage agreement was not exempted from the anti-trust laws. In the present case there is no evidence of a conspiracy between Local 802, or the Federation, and orchestra leaders to eliminate competitors, fix prices or achieve any other commercial restraint, nor was such a finding made by the district judge. Rather, the record establishes that all restraints were instituted unilaterally by the unions and acquiesced in by the orchestra leaders). Nor does the fact that the unions reached agreements with non-labor groups— booking agents, recording companies and others — place this case within the exception. Nevertheless, there is a narrower ground upon which the legality of" }, { "docid": "22137813", "title": "", "text": "the employer parties to this mandatory collective bargaining would also be subject to antitrust penalties, criminal and civil. It would seem the height of unfairness so to penalize employers for the discharge of their statutory duty to bargain on wages, hours, and other terms and conditions of employment, which duty, this Court has held, requires the employer to enter into a signed contract with the union embodying the collective bargaining terms agreed upon. See H. J. Heins Co. v. Labor Board, 311 U. S. 514. The unfairness to employers of this situation is aptly illustrated by the record facts of Pennington. From 1930 until the formation of the Bituminous Coal Operators’ Association and the negotiation of a uniform wage agreement between the Association and the union in 1950, bargaining in the coal industry was highlighted by bitter and protracted negotiations. Costly strikes were a recurring phenomenon and government seizure of the mines was characteristic of most of the period. Unfair labor practice charges were often exchanged and lawsuits resulting from bargaining differences were on court dockets continuously. In 1934, 400,000 miners struck for one week. In 1939, a five-week strike ended only after presidential intervention. In 1941, the union struck southern mines after those operators withdrew from negotiations in which the union was seeking to eliminate a regional wage differential. . Shortly thereafter the union struck the so-called “captive” mines (mines which produce coal to be used in the processing of other products, mainly steel). One hundred thousand other miners struck in sympathy with the captive mine employees. During negotiations in 1943, there were a number of strikes over a six-month period and the Government twice seized the struck mines. Similarly in 1945 a number of strikes following a breakdown in negotiations resulted in government seizure of 235 mines. When the Government seized the mines once again in 1946 because of a breakdown in negotiations over a welfare fund, a settlement was reached only through the active intervention of the Secretary of the Interior, who himself negotiated the beginning of the program of welfare fund benefits. It was the opinion" }, { "docid": "18189219", "title": "", "text": "and a set of fixed labor standards upon all other employers with whom it negotiated. Not only does this forfeit its labor union exemption from the antitrust laws, in accordance with the ruling of the Supreme Court in the United Mine Workers v. Pennington case, supra, but the plaintiffs contend that the Protective Wage Clause constitutes a per se Sherman Act violation under that case. In support of their contentions in this regard, the plaintiffs rely upon the following language from the opinion of Justice White in the Pennington case: “We have said that a union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior. But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units * * * ****** “From the viewpoint of antitrust policy, moreover, all such agreements between a group of employers and a union that the union will seek specified labor standards outside the bargaining unit suffers from a more basic defect, without regard to predatory intention or effect in the particular case. For the salient characteristic of such agreements is that the union surrenders its freedom of action with respect to its bargaining policy * * It is just such restraints upon the freedom of economic units to act according to their own choice and discretion that run counter to antitrust policy.” (Emphasis added) The defendant, upon the other hand, contends that the language of Paragraph A of the Protective Wage Clause commits the Union only to enforce the contract uniformly as between parties signatory to the contract, but leaves the Union free to bargain upon any terms it sees fit with non-signatory operators. It is the position of the U.M.W. that, just as the operators who signed the agreement committed themselves under the provisions" }, { "docid": "14634168", "title": "", "text": "local customers. Through conventional labor union methods the union made closed shop collective bargaining agreements with the contractors which provided that the contractors would buy equipment only from local manufacturers who also had closed shop agreements with the union. The manufacturers agreed with the union to confine their New York City sales to contractors employing union members. As a result the New York City market was completely closed to outside manufacturers because no in-city contractors would buy from them. In-city prices and wages rose steeply. The Supreme Court found no antitrust exemption, holding that when the unions participated with a combination of business men who had complete power to eliminate all competition among themselves and to prevent all competition from others, a situation was created not included within the exemptions of the Clayton and Norris-La Guardia Acts. 325 U.S. at 809, 65 S.Ct. at 1540, 89 L.Ed. at 1948. A second situation in which the exemption may be forfeited was discussed in UMW v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The plaintiff, a small coal operator, alleged that the large coal operators and the UMW had conspired to squeeze him out of business. Underlying the conspiracy, he claimed, was an understanding between the union and the large operators that production should be limited and mechanization encouraged. The number of jobs would shrink, but the workers who were left would get better wages, benefits, and conditions. To effect the alleged scheme, plaintiff claimed, the union and the large operators had agreed to certain wages and hours and had agreed that the union would force the same terms upon small operators whose employees it also represented, though in separate bargaining units. For reasons of economies of scale it was harder for the small operators than for the large ones to pay the new rates, and small operators like plaintiff lost profits or had to fold entirely. The Supreme Court held that a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a" }, { "docid": "9633945", "title": "", "text": "complete and unreviewable authority to aid business groups to frustrate its primary objective. For if business groups, by combining with labor unions, can fix prices and divide up markets, it was little more than a futile gesture for Congress to prohibit price fixing by business groups themselves.” 325 U.S. at 809-810, 65 S.Ct. at 1540. The Supreme Court was again presented the opportunity to examine the Allen Bradley doctrine in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The Court reaffirmed the labor exemption position previously adopted in Allen Bradley and made it indisputably clear that “ . . . [a collective bargaining] agreement resulting from union-employer negotiations is [not] automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement.” 381 U.S. at 664-665, 85 S.Ct. at 1590. In invalidating the wage scale the union sought to impose on all the coal mine operators in Pennington, the Court further stated “there are limits to what a union or an employer may offer or extract in the name of wages, and because they must bargain does not mean that the agreement reached may disregard other laws.” (Emphasis added.) 381 U.S. at 665, 85 S.Ct. at 1591. Unions (and derivatively, employers) will not be shielded from the enforcement of anti-trust legislation against them when they do not act alone and function in concert with non-labor groups to effectuate their labor goals and policies. See, also, Ramsey v. United Mine Workers, 265 F.Supp. 388 (E.D.Tenn.1967), aff’d 416 F.2d 655 (6th Cir. 1969) (en banc), rev’d on other grounds 401 U.S. 302, 91 S.Ct. 658, 28 L.Ed.2d 64 (1971); South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767 (6th Cir. 1970), cert. denied 402 U.S. 983, 91 S.Ct. 1662, 29 L.Ed.2d 149 (1971), rehearing denied 404 U.S. 877, 92 S.Ct. 28, 30 L.Ed.2d 124 (1971). While the Union activities in Meat Cutters Local Union 189 v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640" }, { "docid": "6994972", "title": "", "text": "coal mining industry negotiated an agreement in which the union promised that it would impose the same wage scales on all other employers with whom it bargained, regardless of their ability to pay. Even though the agreement covered mandatory subjects of bargaining, the Court held the agreement constituted an unlawful restraint of trade because its effect was to impose wage scales on other employers, who were outside the scope of the bargaining unit. The Court held that the union forfeited its antitrust exemption when it agreed that it would impose the same wage scale on other employers: We have said that a union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek .to obtain the same terms from other employers. But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. Pennington, 381 U.S. at 665, 85 S.Ct. at 1591. Pennington thus stands for the principle that parties to one collective bargaining relationship cannot attempt to control wages or working conditions of parties they do not represent. Connell was a construction industry dispute in which the union had tried to force a general contractor, who did not employ workers whom the union represented, and who was not a party to the union’s collective bargaining agreement with mechanical subcontractors, to agree to deal only with mechanical subcontractors who were parties to the union’s collective bargaining agreement. The purpose was, of course, to exclude nonunion subcontractors from the general contractor’s jobs. The Court held that such an agreement was not within either the statutory or nonstatutory exemption from antitrust liability. The Court acknowledged, as it had in Pennington and Jewel Tea, that federal labor policy supporting the collective bargaining process necessarily decreases competition over wages and other Congressionally mandated subjects of bargaining. At the same time, the Court recognized that competition based on efficiency is the driving policy behind the antitrust laws. The Court concluded that an" } ]

[ { "docid": "22752778", "title": "", "text": "making the assault, or with both a failure to report for a routine scheduled duty, such as reveille, and with absence without leave if the failure to report occurred during the period for which he is charged with absence without leave. The larceny of several articles should not be alleged in several specifications, one for each article, when the larceny of all of them can properly be alleged in one specification (200a (8)). If a person willfully disobeys an order to do a certain thing, and persists in his disobedience when the same order is given by the same or other superior, a multiplication of charges of disobedience should be avoided (169b). There are times, however, when sufficient doubt as to the facts or the law exists to warrant making one transaction the basis for charging two or more offenses. See 74b (4) and 76a (5). (Emphasis added.) This type of provision is designed in part to prevent certain abuses of prosecutorial power which might embarrass or confound the accused in his defense at trial. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); see generally Moore’s, supra, § 8.07[1]. In particular, it seeks to avoid the situation where a single criminal offense is exaggerated into many seemingly separate crimes so as to create the impression that the accused is a bad character and therefore lead the court-martial to resolve against him doubt created by the evidence. United States v. Middleton, 12 U.S.C.M.A. 54, 58, 30 C.M.R. 54, 58 (1960); Wright, supra. The remedy for a prejudicial and unreasonable multiplication of charges when discovered at the appellate level may be drastic. United States v. Sturdivant, 13 M.J. 323 (C.M.A.1982); cf. United States v. Strand, 6 U.S.C.M.A. 297, 20 C.M.R. 13 (1955); Fed.R.Crim.P. 14. In applying this rule, it first should be determined whether the charged offenses are based on “[o]ne transaction or what is substantially one transaction.” Similar language appears in Fed.R.Crim.P. 8(a). Although the word transaction is flexible in meaning, it is generally construed to embrace a series of occurrences or an aggregate of" } ]

[ { "docid": "8303520", "title": "", "text": "of a particular statute but can also pave the way for constructive judicial use of legislative as well as case law precedents. 2A Sutherland Statutory Construction § 45.10 at 45 (C. Sands 4th ed. 1984 Revision) (footnote omitted). Thus, from our consideration of legislative intent, we came to the conclusion that, although dereliction of duty and larceny are prohibited by different Articles of the Uniform Code {see Articles 92 and 121, 10 U.S.C. §§ 892 and 921, respectively), have different elements, and have different purposes, an accused’s conviction for dereliction of duty should be set aside where the dereliction consisted of his failure to prevent or report a larceny of Government property for which he was also convicted. See United States v. Marks, 11 M.J. 303 (C.M.A.1981); United States v. Pretty, 11 M.J. 153 (C.M.A.1981); cf. United States v. Heyward, 22 M.J. 35 (C.M.A.1986). Of course, prosecution for an accused’s failure to report his own crime may present self-incrimination issues; but this was not the basis for our ruling. We simply did not believe that Congress intended for there to be simultaneous convictions or aggregate punishments under these circumstances. United States v. Thompson, 22 M.J. 40 (C.M.A.1986). In another instance, the judges of this Court could not agree as to whether simultaneous convictions were permitted. United States v. West, 17 M.J. 145 (C.M.A.1984). There the majority concluded that an accused could be convicted both of larceny of military property and of wrongful disposition of that property, even though both offenses occurred simultaneously. See Arts. 122 and 108, UCMJ, 10 U.S.C. §§ 922 and 908, respectively. The dissent’s view there was that Congress had intended to permit conviction only for one of these offenses where there was a single transaction. C Against this background, we turn now to consider whether there was a congressional intent that an accused not only can be tried by court-martial for rape and adultery arising out a single act but also can be convicted of both offenses. Even though conviction of adultery does not require proof of consent, adultery has never been thought of as a" }, { "docid": "14709574", "title": "", "text": "The record of trial is returned to The Judge Advocate General of the Air Force for resubmission to a board of review for redetermination of an appropriate sentence in the light of this opinion. Judge FERGUSON concurs. In reaching this conclusion, we have not overlooked the fact that under the Table of Maximum Punishments prescribed by the President, a wrongful disposition of a temporary nature, as, for example, a loan or pledge (see Winthrop, Military Law and Precedents, 2d ed, 1920 Reprint, pages 698, 708-709) carries a more severe penalty than that for a violation of Article 121. However, the considerations that may flow from this difference have no bearing upon our problem. Under the Uniform Code, the President has the responsibility of fixing the limits of punishment (Article 56, Uniform Code of Military Justice, 10 USC § 856), and he has, in other instances, predicated the punishment upon the nature of the property involved. Thus, misappropriation of property of a value of more than $50.00 is punishable, in part, by a bad-conduct discharge and confinement for not more than six months, while misappropriation of a motor vehicle subjects the offender to a dishonorable discharge and confinement at hard labor for two years. LatimeR, Judge (dissenting): I dissent. The heart of the Court’s opinion is found in two statements: “We are’ persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments,” and “The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of substance.” Of course, Congress decided to the contrary, for it made disposition of military property an offense under Article 108 of the Code with an appropriate sentence, and it made larceny and wrongful appropriation different offenses under Article 121 with some variation in maximum sentences. In addition, these Articles rather pointedly suggest a departure from the view that is expressed by my associates that we are merely dealing with a matter of" }, { "docid": "14478740", "title": "", "text": "only elements of the other offense and that the elements of the larceny charge were not “fairly embraced” in the factual allegations of the false identification card offense, citing Baker, 14 M.J. at 368. At trial, Holt had not challenged the failure of the larceny specifications to state how the thefts were accomplished. Even though the response to a motion for a bill of particulars might have demonstrated that the factual allegations of the larceny offenses embraced the identification card offenses, the Court declined to “go beyond the language of the specification on which the case is tried.” Holt, 16 M.J. at 394. The Holt decision was followed on the same day by United States v. Allen, 16 M.J. 395 (C.M.A.1983). In Allen, the accused was convicted of larceny of airline tickets and of bad check offenses, in violation of Articles 121 and 123a, UCMJ, 10 U.S.C. § 923a, respectively. The Court had no difficulty in finding that the worthless check offenses, alleging that the checks were made for the procurement of the airline tickets, were the false pretense by which the accused wrongfully obtained the property. The failure in the courts below to set aside the multiplicious bad check findings was plain error requiring relief. Most recently, in United States v. Jones, 23 M.J. 301 (C.M.A.1987), the United States Court of Military Appeals considered whether a finding of larceny of U.S. currency was multiplicious with uttering a forged check in the same amount at the same time and place, in violation of Articles 121 and 123, UCMJ, respectively. Quoting Holt, the Court held that the larceny offense did not “fairly embrace” the worthless check offense under the Baker rationale even though a companion conspiracy charge made it clear that such a relationship did exist. The failure of the defense counsel to request appropriate relief at the trial level was fatal to the belated appellate claim. In this case, as in Jones, the specifications allege no direct relationship between the larceny and the forgery, i.e. there is no indication that the forgery was the means by which the larceny was" }, { "docid": "14709570", "title": "", "text": ". . or to appropriate it to his own use or the use of” another, is guilty of larceny; or, if his intent is temporarily to deprive the owner or possessor of the use or benefit of the article, he is guilty of wrongful appropriation. On first reading, it would seem that each offense requires proof of a fact not required for proof of the other. Thus, Article 108 requires that the property be military property, a fact which is not essential to the proof of an Article 121 offense; and the latter requires proof of a specific intent, a fact not essential to the proof of a charge under Article 108. More critical analysis, however, reveals the differences to be illusory when applied to a situation in which there is but one act by the accused. No example has been presented to us, nor have we been able to imagine one, in which the disposition of the property of .another does not disclose an intent to transfer ownership or possession either temporarily or permanently. In United States v Kubel, 1 USCMA 645, 5 CMR 73, we considered the factual inference that could be-drawn from the sale of property. We there said (page 648): . . An unconditional sale is generally understood to imply a transfer of ownership with the purchaser acquiring the right to deal with the property as his own. Implicit in such a transaction is an intent to forever deprive the true owner of his property. Particularly is this true when the sale is conducted surreptitiously.” Similar reasoning applies in the case of other absolute dispositions, as, for example, a gift or an exchange. So, too, if the accused transfers less than absolute ownership, his act necessarily supports the inference that he intended temporarily to deprive the owner of the use or benefit of the property. From the standpoint of proof, therefore, there is no difference between the two offenses. Evidence sufficient to establish an act of wrongful disposition would be sufficient to prove the accused’s intent. Thus, aside from the character of the property, inevitably the" }, { "docid": "23152340", "title": "", "text": "of confinement for these offenses amounted to almost 80% of the total confinement to which the accused was subject. Appellate defense counsel contend that the entire field of misconduct embraced by the charge has been preempted by military law, and, therefore, the Government is precluded from prosecuting the offense defined by civilian law. The concept that evolved as the doctrine of preemption was first discussed by this Court in the early case of United States v. Norris, 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953). There, the accused was charged with larceny, in violation of Article 121, UCMJ, 10 U.S.C. § 921. That article proscribes two kinds of unauthorized takings of property of another; the first is the taking with the intent to permanently deprive the person of the property, which is larceny, and the other is unauthorized taking with an intent to temporarily deprive, which is denominated wrongful appropriation. The court-martial convicted the accused of wrongful appropriation, but on appeal the finding was changed by the Board of Review (now Court of Military Review) to “wrongful taking,” in violation of Article 134 of the Code. Id. at 238, 8 C.M.R. at 38. The Judge Advocate General of the Army certified the ease to this Court to determine whether the finding by the appellate tribunal constituted an offense under military law. Reviewing military legal precedents and the legislative background of the Uniform Code, the Court concluded that in Article 121, Congress “covered the entire field of criminal conversion for military law” and the Government could not “eliminate vital elements” from the offenses specified in that article and charge the remaining elements as an offense in violation of Article 134. Id. at 239, 8 C.M.R. at 39. Norris stressed, as have later opinions on the subject, that the applicability of the preemption doctrine requires an affirmative answer to two questions. The primary question is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the Code; the secondary question is whether the offense charged is composed of a residuum of" }, { "docid": "14712744", "title": "", "text": "envelope addressed to Paradis. The accused’s counsel contend that the Article 134 specification charges larceny of the mail, while the Article 121 specification alleges larceny of money and a postal order contained therein, and thus United States v DiCario, 8 USCMA 353, 24 CMR 163, is controlling. With this analysis we must disagree. In DiCario, the accused was charged with stealing nine letters and also of the larceny of money found therein. There the majority of this Court said: “. . . It is also the general rule that only a single theft is committed when the thief takes one article which contains other articles within it. . . [Page 361.] The offense alleged in the first specification in the instant case is entirely different. This specification states that the accused unlawfully opened and secreted certain letters. That is an allegation of simply tampering with the mail, see Appendix 6c, Specification 152, Manual for Courts-Martial, United States, 1951, and not larceny. In United States v Geppert, 7 USCMA 741, 23 CMR 205, the Government argued, as does accused in this case, that a specification properly alleges an offense if words are substituted which have the ordinary connotation of the specific words stated in the Code. There the Government had claimed that “wrongfully withheld” expressed sufficient criminal intent to allege the Article 121 offense of wrongful appropriation. We answered that contention by stating: “. . . Second, assuming similarity in ordinary usage, in the military community, wrongful appropriation is a ‘term of art,’ deriving its special meaning from the Uniform Code of Military Justice. However, wrongful withholding has not been given the same considered treatment. . . . Wrongful appropriation, then, in the military connotes the wrongful obtaining or withholding of certain goods, coupled with the specific intent temporarily to deprive another of the use and benefit of his property. It is for that reason that the phrase wrongful appropriation states by fair implication both of those elements of the offense. “On the other hand, the term withholding, whether wrongful or otherwise, has no such special meaning, and it has not" }, { "docid": "14709575", "title": "", "text": "confinement for not more than six months, while misappropriation of a motor vehicle subjects the offender to a dishonorable discharge and confinement at hard labor for two years. LatimeR, Judge (dissenting): I dissent. The heart of the Court’s opinion is found in two statements: “We are’ persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments,” and “The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of substance.” Of course, Congress decided to the contrary, for it made disposition of military property an offense under Article 108 of the Code with an appropriate sentence, and it made larceny and wrongful appropriation different offenses under Article 121 with some variation in maximum sentences. In addition, these Articles rather pointedly suggest a departure from the view that is expressed by my associates that we are merely dealing with a matter of form. In the majority opinion, I do not find one case cited which supports the conclusion reached. Moreover, it is interesting to consider the rationale of Gavieres v United States, 220 US 888, 55 L ed 489, 31 S Ct 421, and Normandale v United States, 201 F 2d 463 (CA 5th Cir) (1953), cited by the Court, for if these cases support the views expressed by my associates, then I misread their language. In the former, I find these statements in summation of the holding: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” And in the same case: “While it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other.” In the latter, this quotation is illuminating: “The same course of" }, { "docid": "7321939", "title": "", "text": "the single act of transferring possession. The evidence which proved one offense established the other, and neither was lesser included in the other. In that factual background, a majority of the Court concluded the offenses were multiplicious because: . . The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of sub stance. We are persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments. We hold, therefore, that the charges are multiplicious.” We have no such situation in the case at bar. Here, we are confronted with the usual “black-marketing” operation where the source of the merchandise is the Government and the outlet foreign nationals. There is a positive violation of two distinct Congressional statutes, and there is no compelling reason for us to say that fairness to the accused requires us to limit punishment to one. The crime of selling Government property is complete without regard to the manner in which possession is obtained, and the offense of stealing is committed regardless of the manner in which the thief later deals with the property, pre-termitting an intent to return at the time of the taking. Thus, larceny of Federal property requires proof of a wrongful taking which is not necessary in the sale of Government property. And sale of Government property does not require proof of wrongful taking. By way of fitting the rule to the facts of a case, we hypothesize the situation we have mentioned previously. The accused could have taken the property with intent to sell and thus have formed the necessary intents for both offenses. However, prior to the selling and because of fear of detection, he could have concluded to retain possession of the merchandise. Under that state of facts, the accused would be guilty of larceny but not of wrongful disposition of Government property. Illustrations could be multiplied, but such a course is not dictated because this" }, { "docid": "12136294", "title": "", "text": "find in order to convict under the available statutory theories of taking, obtaining, or withholding.” Antonelli, 35 M.J. at 129 n. 6. Further, if a military judge instructs on a general theory of larceny, the court members could reach a finding of guilty on a theory that is inapplicable to the facts of a particular case. See O’Hara, 33 C.M.R. at 382; United States v. Roberson, 12 U.S.C.M.A. 719, 31 C.M.R. 305, 308 (1962); Sicley, 20 C.M.R. at 126. If the government elects a larceny theory they are unable to prove, the conviction may still be valid if the government succeeds in putting forth evidence that proves another theory of larceny or the military judge obtains admissions from the accused in a guilty plea inquiry that satisfy the elements of proof of another theory. See, e.g., United States v. Banda, ACM S28444 (A.F.C.M.R. 10 April 1992); United States v. Carraway, 5 C.M.R. 602 (A.F.B.R.1952). However, in order for a larceny conviction to be valid, the government must prove, or the accused must admit, conduct that amounts to a larceny. Specifically, the government must prove that the accused: “wrongfully took, obtained, or withheld certain property from the possession of the owner ...” MCM, Part IV, paragraph 46b(l)(a) (1984) (emphasis added); Article 121(a), UCMJ; Antonelli, 35 M.J. at 126; O’Hara, 33 C.M.R. at 381. Problems arise with larceny convictions when the evidence at trial or the accused’s admissions in a guilty plea inquiry do not establish that the accused engaged in conduct that amounts to any larceny under Article 121, i.e., no wrongful taking, obtaining, or withholding of property of another. See, e.g., Mervine, 26 M.J. at 483-84; United States v. Meeks, 32 M.J. 1033 (A.F.C.M.R.1991); United States v. Harrison, 32 M.J. 1027 (A.F.C.M.R.1991); United States v. Watkins, 32 M.J. 527 (A.C.M.R.1990). When a military member’s larceny conviction is challenged upon appeal for a failure to state an offense or sufficiency of the evidence, the role of the appellate court “is to determine whether an accused’s conduct as charged and proved could have been punished under any of the three predicate crimes" }, { "docid": "7321938", "title": "", "text": "when we make this assumption, our previous rulings do not require a holding of multiplicity. Generally speaking, in determining multiplicity we have used the Manual test which provides that the offenses are separate if each offense requires proof of an element not required to prove the other. In some instances, that principle has been rejected because it was believed its use would violate the cardinal principle of law that a person may not be twice punished for the same crime. However, this does not mean it is to be disregarded when there are two or more separate criminal acts, even though they grew out of essentially one overall transaction. In this case it can be argued that as to each item of Government property, there were two separate transactions with supporting criminal intents, but, disregarding that contention and confining our views to the same transaction rule, we believe these offenses are separate. United States v Brown, supra, was a peculiar case on its facts. There, both the theft and the wrongful disposition were proved by the single act of transferring possession. The evidence which proved one offense established the other, and neither was lesser included in the other. In that factual background, a majority of the Court concluded the offenses were multiplicious because: . . The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of sub stance. We are persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments. We hold, therefore, that the charges are multiplicious.” We have no such situation in the case at bar. Here, we are confronted with the usual “black-marketing” operation where the source of the merchandise is the Government and the outlet foreign nationals. There is a positive violation of two distinct Congressional statutes, and there is no compelling reason for us to say that fairness to the accused requires us to limit punishment to one. The crime" }, { "docid": "12939576", "title": "", "text": "We there recognized that although the sweep of the Article was vast it was not infinite. Chief Judge Quinn, speaking for a unanimous Court in that case, delineated the scope of statutory larceny when he said: “By enacting Article 121 (a), •supra, Congress eliminated the ofttimes subtle and confusing distinctions previously drawn between common law larceny, embezzlement, and false pretenses. United States v. Al-dridge, 2 USCMA 330, 8 CMR 130, decided March 24, 1953; United States v Norris, 2 USCMA 236, 8 CMR 36, decided February 27, 1953. The consolidation of these crimes, however, did not enlarge the scope of the statutory crime of ‘larceny’ to include more than its components previously encompassed. Since the whole is equal to, not greater than, the sum of all its parts, that which did not constitute common law larceny, embezzlement, or false pretenses, prior to the adoption of Article 121(a), supra, was not thereafter punishable as a violation thereof.” [Emphasis supplied.} In order to prevail, the Government must bring the conduct engaged in by this accused within the prohibited areas defined in Article 121 of the Code. At trial the accused’s conviction for larceny was sought on the theory that he had wrongfully withheld the property of another with the requisite intent. The Manual for Courts-Martial, supra, defines the words “takes, obtains, or withholds,” as used in Article 121 of the Code, in the following manner: “. . . A wrongful taking with intent permanently to deprive includes the common law offense of larceny; a wrongful obtaining with intent permanently to defraud includes the offense formerly known as obtaining by false pretense; and a wrongful withholding with intent permanently to appropriate includes the offense formerly known as embezzlement. Any of the various acts denounced as larceny by Article 121 may be charged and proved under a specification alleging that the accused stole the property in question.” [Paragraph 200a (1).] [Emphasis supplied.] Embezzlement is a purely statutory offense not having been recognized as a crime at common law. The object of the various statutes creating this offense was to obviate certain defects found in" }, { "docid": "14709569", "title": "", "text": "month after the date agreed upon for redemption. As a result, the accused was charged with the wrongful disposition of military property by pawning, and with the larceny of the same property by the same act. For the purpose of punishment, offenses are, in a general way, considered to be separate, if each has an element of proof not required for the proof of the other. United States v Larney, 2 USCMA 563, 10 CMR 61. In pertinent part, Article 108 provides that any person subject to the Uniform Code who, without proper authority, “sells or otherwise disposes of . . . any military property” of the United States shall be punished as a court-martial may direct. Under Article 121, any person subject to the Code who “wrongfully takes ... or witholds, by any means, from the possession of the owner or of any other person any . . . article of value of any kind . . . with intent permanently to deprive . . . another ... of the use and benefit . . . or to appropriate it to his own use or the use of” another, is guilty of larceny; or, if his intent is temporarily to deprive the owner or possessor of the use or benefit of the article, he is guilty of wrongful appropriation. On first reading, it would seem that each offense requires proof of a fact not required for proof of the other. Thus, Article 108 requires that the property be military property, a fact which is not essential to the proof of an Article 121 offense; and the latter requires proof of a specific intent, a fact not essential to the proof of a charge under Article 108. More critical analysis, however, reveals the differences to be illusory when applied to a situation in which there is but one act by the accused. No example has been presented to us, nor have we been able to imagine one, in which the disposition of the property of .another does not disclose an intent to transfer ownership or possession either temporarily or permanently." }, { "docid": "7321937", "title": "", "text": "by him in accomplishing his venture. Here the accused asported the property, secreted it, and then subsequently sold the same to third persons. At least a full day elapsed between the takings and disposals. It is obvious from his method of operation that he possessed dual intents— that is, an intent to steal and an intent to sell — and while they may have been formed simultaneously, the sequence of events was such that they were severa-ble ' and he could have abandoned his intent to dispose of the goods after he had executed his plan to steal. In that event, there would have been only a violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. Further, had he been apprehended in the course of the asportation, there would have been no violation of Article 108 of the Code, 10 USC § 908. For the purpose of deciding this case, we are willing to assume the plan to steal and sell was formed as part of a unitary mental process. Even when we make this assumption, our previous rulings do not require a holding of multiplicity. Generally speaking, in determining multiplicity we have used the Manual test which provides that the offenses are separate if each offense requires proof of an element not required to prove the other. In some instances, that principle has been rejected because it was believed its use would violate the cardinal principle of law that a person may not be twice punished for the same crime. However, this does not mean it is to be disregarded when there are two or more separate criminal acts, even though they grew out of essentially one overall transaction. In this case it can be argued that as to each item of Government property, there were two separate transactions with supporting criminal intents, but, disregarding that contention and confining our views to the same transaction rule, we believe these offenses are separate. United States v Brown, supra, was a peculiar case on its facts. There, both the theft and the wrongful disposition were proved by" }, { "docid": "12136290", "title": "", "text": "first came before us, he contended that the government did not present sufficient evidence to support a wrongful withholding larceny conviction. We agreed and set aside the portion of appellant’s larceny conviction occurring pri- or to 4 November 1987. The United States Court of Military Appeals set aside the portion of our decision concerning appellant’s larceny conviction and returned the case to us for reconsideration. United States v. Antonelli, 35 M.J. 122 (C.M.A.1992). In returning the case, the Court asked us to take another look at appellant’s recertification documents and consider whether a wrongful withholding might arise from a bailment or wrongful conversion of the “with dependent” BAQ. II. Law and Analysis. The statutory basis for the current military law of larceny is Article 121, UCMJ, 10 U.S.C. § 921. Before enactment of Article 121, UCMJ, the Articles of War required allegation and proof of a specific theory of larceny. Enactment of Article 121 consolidated the offenses of common law larceny by trespass, embezzlement, and obtaining property by false pretense into one statutory offense of larceny and wrongful appropriation. INDEX AND LEGISLATIVE HISTORY: UNIFORM CODE OF MILITARY JUSTICE, 1950, at 1232 (1950); United States v. Antonelli, 35 M.J. 122, 124 (C.M.A.1992); United States v. McFarland, 8 U.S.C.M.A. 42, 23 C.M.R. 266, 269 (1957); United States v. Buck, 3 U.S.C.M.A. 341, 12 C.M.R. 97, 99 (1953); MCM, Part IV, paragraph 46c(1)(a) (1984). Consolidation of the different types of larceny offenses into Article 121 did not create any new larceny offenses that did not exist prior to the consolidation. Antonelli, 35 M.J. at 124, United States v. Mervine, 26 M.J. 482, 483 (C.M.A.1988); McFarland, 23 C.M.R. at 269; Buck, 12 C.M.R. at 99; United States v. Sicley, 6 U.S.C.M.A. 402, 410 n. 1, 20 C.M.R. 118, 126 n. 1 (1955); United States v. Dean, 33 M.J. 505, 598 (A.F.C.M.R.1991); United States v. Chapman, 15 C.M.R. 755, 757 (A.F.B.R.1954). Consequently, Article 121 does not criminalize conduct not previously recognized under military law as common law larceny, larceny by false pretenses, or embezzlement. Antonelli, 35 M.J. at 126, Mervine, 26 M.J. at 483; McFarland," }, { "docid": "12136295", "title": "", "text": "amounts to a larceny. Specifically, the government must prove that the accused: “wrongfully took, obtained, or withheld certain property from the possession of the owner ...” MCM, Part IV, paragraph 46b(l)(a) (1984) (emphasis added); Article 121(a), UCMJ; Antonelli, 35 M.J. at 126; O’Hara, 33 C.M.R. at 381. Problems arise with larceny convictions when the evidence at trial or the accused’s admissions in a guilty plea inquiry do not establish that the accused engaged in conduct that amounts to any larceny under Article 121, i.e., no wrongful taking, obtaining, or withholding of property of another. See, e.g., Mervine, 26 M.J. at 483-84; United States v. Meeks, 32 M.J. 1033 (A.F.C.M.R.1991); United States v. Harrison, 32 M.J. 1027 (A.F.C.M.R.1991); United States v. Watkins, 32 M.J. 527 (A.C.M.R.1990). When a military member’s larceny conviction is challenged upon appeal for a failure to state an offense or sufficiency of the evidence, the role of the appellate court “is to determine whether an accused’s conduct as charged and proved could have been punished under any of the three predicate crimes encompassed by Article 121.” Antonelli, 35 M.J. at 126. In this case, our role is simplified by the fact that the government elected a specific theory of larceny for the contested portion of the offense. Therefore we must determine whether the government proved appellant committed a larceny by wrongfully withholding the “with dependents” rate BAQ and VHA he received during the period 1 December 1986 through 3 November 1987. III. Larceny by Wrongful Withholding. All three forms of larceny encompassed by Article 121 require that the property stolen belong to another. The key difference between wrongful withholding and wrongful taking or obtaining by false pretense is that the wrongful withholder originally acquires the stolen property in some lawful manner. Antonelli, 35 M.J. at 127; W. LaFave and A. Scott, 2 Substantive Criminal Law §§ 8.2 and 8.6 (1986); United States v. Rapolla, 34 M.J. 1268 (A.F.C.M.R.1992); Neff, 34 M.J. at 1201-02. This offense has its origin in embezzlement and conversion, and the property is lawfully acquired through some relationship between the owner of the property" }, { "docid": "14712745", "title": "", "text": "as does accused in this case, that a specification properly alleges an offense if words are substituted which have the ordinary connotation of the specific words stated in the Code. There the Government had claimed that “wrongfully withheld” expressed sufficient criminal intent to allege the Article 121 offense of wrongful appropriation. We answered that contention by stating: “. . . Second, assuming similarity in ordinary usage, in the military community, wrongful appropriation is a ‘term of art,’ deriving its special meaning from the Uniform Code of Military Justice. However, wrongful withholding has not been given the same considered treatment. . . . Wrongful appropriation, then, in the military connotes the wrongful obtaining or withholding of certain goods, coupled with the specific intent temporarily to deprive another of the use and benefit of his property. It is for that reason that the phrase wrongful appropriation states by fair implication both of those elements of the offense. “On the other hand, the term withholding, whether wrongful or otherwise, has no such special meaning, and it has not been defined in military law to include any criminal mens rea. Rather, it is only mentioned in the Code or the Manual in its ordinary sense, and it there indicates only one of the types of possession, which must be coupled with the necessary intent to make out either larceny or wrongful appropriation. Article 121, Uniform Code of Military Justice, supra; Manual for Courts-Martial, United States, 1951, paragraph 200. If, therefore, wrongful withholding must be combined with an element of specific intent to equal misappropriation, the two cannot be synonymous. Accordingly, since the term wrongful withholding does not fairly embrace any specific intent, the specification does not allege wrongful appropriation.” Here, it is our opinion that the phrase “open and secrete” does not allege the intention necessary to charge the crime of larceny. Thus, unlike United States v DiCario, this accused was not charged with two larcenies arising out of.one transaction. Although we could dispose of this appeal upon the above grounds, there are other reasons for supporting the sentence. First, the specification fails to" }, { "docid": "14709568", "title": "", "text": "Opinion of the Court ROBERT E. Quinn, Chief Judge: A special court-martial convicted the accused of the wrongful disposition of an Air Force parka alleged to be “military property of the United States,” and of the larceny of the same article at the same time, in violation of Articles 108 and 121, Uniform Code of Military Justice, 10 USC §§ 908 and 921 respectively. We granted review to consider whether the charges are mul-tiplicious. On February 10, 1956, the accused desired to spend the night with a lady of pleasure. He had no funds. However, she agreed to accept, as security for payment, a parka which had been issued to the accused as part of his military equipment. The pledge was to be redeemed on pay day, which was about a week later. Pay day passed without action by the accused. In May, the accused was directed to turn in his parka to base supply. Thereupon, he attempted to reclaim the garment from his lady friend. He learned that she had sold it about a month after the date agreed upon for redemption. As a result, the accused was charged with the wrongful disposition of military property by pawning, and with the larceny of the same property by the same act. For the purpose of punishment, offenses are, in a general way, considered to be separate, if each has an element of proof not required for the proof of the other. United States v Larney, 2 USCMA 563, 10 CMR 61. In pertinent part, Article 108 provides that any person subject to the Uniform Code who, without proper authority, “sells or otherwise disposes of . . . any military property” of the United States shall be punished as a court-martial may direct. Under Article 121, any person subject to the Code who “wrongfully takes ... or witholds, by any means, from the possession of the owner or of any other person any . . . article of value of any kind . . . with intent permanently to deprive . . . another ... of the use and benefit ." }, { "docid": "14478741", "title": "", "text": "were the false pretense by which the accused wrongfully obtained the property. The failure in the courts below to set aside the multiplicious bad check findings was plain error requiring relief. Most recently, in United States v. Jones, 23 M.J. 301 (C.M.A.1987), the United States Court of Military Appeals considered whether a finding of larceny of U.S. currency was multiplicious with uttering a forged check in the same amount at the same time and place, in violation of Articles 121 and 123, UCMJ, respectively. Quoting Holt, the Court held that the larceny offense did not “fairly embrace” the worthless check offense under the Baker rationale even though a companion conspiracy charge made it clear that such a relationship did exist. The failure of the defense counsel to request appropriate relief at the trial level was fatal to the belated appellate claim. In this case, as in Jones, the specifications allege no direct relationship between the larceny and the forgery, i.e. there is no indication that the forgery was the means by which the larceny was committed. Further, the forgery was alleged to have been committed on 11 November 1986, while the larceny was alleged to have been committed on 28 November 1986. Thus, from the face of the specifications, we conclude that the larceny specification does not fairly embrace an allegation that the means by which the larceny was committed was a forged instrument and that the offenses are not multiplicious for findings. To the extent that other decisions of this court and of the other service Courts of Military Review may have applied a summary per se multiplicity rule for pleading and punishment purposes whenever a worthless instrument was used to obtain currency or an other item of value, we decline to follow them. Rather, we adopt the standard applied in Baker, Allen, Holt, and Jones. Our analysis of those holdings leads us to conclude that where, as here, the specifications are not lesser included within one another, the allegations do not make it apparent that the specifications fairly embrace each other, and trial defense counsel does not raise" }, { "docid": "12939577", "title": "", "text": "prohibited areas defined in Article 121 of the Code. At trial the accused’s conviction for larceny was sought on the theory that he had wrongfully withheld the property of another with the requisite intent. The Manual for Courts-Martial, supra, defines the words “takes, obtains, or withholds,” as used in Article 121 of the Code, in the following manner: “. . . A wrongful taking with intent permanently to deprive includes the common law offense of larceny; a wrongful obtaining with intent permanently to defraud includes the offense formerly known as obtaining by false pretense; and a wrongful withholding with intent permanently to appropriate includes the offense formerly known as embezzlement. Any of the various acts denounced as larceny by Article 121 may be charged and proved under a specification alleging that the accused stole the property in question.” [Paragraph 200a (1).] [Emphasis supplied.] Embezzlement is a purely statutory offense not having been recognized as a crime at common law. The object of the various statutes creating this offense was to obviate certain defects found in the law of larceny which permitted many persons who had misappropriated the property of another to escape criminal prosecution because of the absence of a trespass. Generally in embezzlement, the property comes lawfully into the accused’s possession by virtue of the existence of a fiduciary relationship with the owner. 18 Am Jur, Embezzlement, § 2. When we look to the facts of the instant case, we are unable to find any conduct engaged in by this accused which would previously have constituted the offense of embezzlement. He was in no manner involved in the actual theft of the wallet or in the preparations preceding it. His participation in the incident was limited to the acceptance of $2.00 from the thief with the concurrent knowledge that the money had been stolen from the victim. A finding of guilty, therefore, cannot be predicated upon a theory of embezzlement or false pretenses because patently there existed no fiduciary relationship as between the accused and Price and there is not the slightest indication that the property was obtained by" }, { "docid": "14709572", "title": "", "text": "“evidence sufficient for conviction under the first charge would . . . have convicted under the second.” Gavieres v United States, 220 US 338, 343, 55 L ed 489, 31 S Ct 421 (1911). See also United States v Redenius, 4 USCMA 161, 15 CMR 161; Normandale v United States, 201 F 2d 463 (CA 5th Cir) (1953). And, when we add the property element, the interrelation of the two offenses is even more forcefully presented. Here, both charges allege that the parka was “military property of the United States.” Apparently realizing that this allegation raises the question of the imposition of punishment for both a principal and a lesser included offense, the Government argues that the allegation was “superfluous ... to the proof” of the larceny. Rejecting a somewhat similar argument in another multiplicity case we said: “. . . While an allegation of an aggravating factor may be surplus-age to a principal offense, it may satisfy an element of the lesser. Therefore, we conclude that where, as here, the allegations of the specification are broad enough to permit proof of the use of a deadly weapon, and its use constitutes the force and violence of the robbery charge, an aggravated assault is a lesser crime included within the latter.” [United State v McVey, 4 USCMA 167, 174, 15 CMR 167.] Unquestionably, Congress can make “each stick in a faggot a single criminal unit,” but when it is doubtful as to whether it intended to do so, the doubt should be “resolved against turning a single transaction into multiple offenses.” Bell v United States, 349 US 81, 83-84, 99 L ed 905, 75 S Ct 620 (1955). The difference between the sale or other unauthorized disposition provision of Article 108 and the general provisions of Article 121, when only one act is committed is a difference more of form than of substance. We are persuaded then that when a single act violates both Articles, it was not intended that the offender be subjected to two punishments. We hold, therefore, that the charges are multiplicious. The sentence is set aside." } ]

[ { "docid": "2084570", "title": "", "text": "the circumstances of this case. In Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952), a pre-Uniform Commercial Code sale of goods case, the Illinois Supreme Court held that promissory estoppel is not a viable exception to the statute of frauds. 411 Ill. at 162-67, 103 N.E.2d 485. Although, as we noted in Goldstick, 788 F.2d at 464, Ozier preceded the modern development of the doctrine of promissory estoppel, the Illinois Supreme Court has since implicitly rejected the application of the doctrine to overcome a statute of frauds defense in a case arising outside of the U.C.C. See Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 510, 202 N.E.2d 516 (1964) (holding that only “fraud or material misrepresentation” relating “to an existing or past event, not to a promise or prognostication concerning a future happening,” will estop a party from asserting the statute of frauds as a defense). See also Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc., 72 Ill.App.3d 806, 810-11, 28 Ill.Dec. 802, 391 N.E.2d 1 (1st Dist.1979); Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc., 130 Ill.App.3d 798, 86 Ill.Dec. 48, 474 N.E.2d 1245 (1st Dist. 1984). Of equal importance for this case is the fact that Sinclair involved a contract for employment and, accordingly, is directly on point with respect to Evans’s claim. Evans does, however, cite several cases which seem, at first glance, to support his position, including Jenkins & Boller Co. v. Schmidt Iron Works, Inc., 36 Ill.App.3d 1044, 344 N.E.2d 275 (2d Dist.1976) and our decision in R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., supra. See also Hux v. Woodcock, 130 Ill.App.3d 721, 86 Ill.Dec. 44, 474 N.E.2d 958 (5th Dist.1985). In Jenkins, the court, in considering the application of promissory estoppel in the context of construction industry bids, apparently concluded that the U.C.C.’s statute of frauds provision, Ill.Ann.Stat. ch. 26, ¶ 2-201(1) (Smith-Hurd 1963 and 1986 Supp.), would not preclude the plaintiff’s action premised on promissory estoppel. 36 Ill.App.3d at 1046-48, 344 N.E.2d 275. Relying on Jenkins, this court in Bennett reached the same conclusion in a similar case also" } ]

[ { "docid": "13300854", "title": "", "text": "the computer printouts, we caution litigants against taking the cursory approach taken in this case to such evidence (which is likely to become increasingly prevalent and important in the future). For a discussion of the foundation necessary to admit computer records, see, e.g., United States v. Catabran, 836 F.2d 453, 456-58 (9th Cir.1988); Croft, 750 F.2d at 1364-65; and Sanders, 749 F.2d at 197-99. . The $61,539 Zayre claimed that SM & R owed included a credit of $43,689 previously paid. Thus, SM & R’s total exposure for vacation pay was $105,228. Campbell mentioned to Pohn a \"maximum” total exposure of $120,000, and a “realistic” total exposure of $70,000. . SM & R made a passing reference to promissory estoppel in its brief in the district court but the district court did not consider estoppel because that reference was insufficient to demonstrate that SM & R was actually pressing the issue. SM & R does not challenge that decision on appeal. One may wonder whether the full performance doctrine and estoppel are really different doctrines. See, for instance, Meyer, 56 Ill.Dec. at 711, 427 N.E.2d at 1257. In any event, it is evident that SM & R argued them as separate doctrines below; its reference to full performance appeared several pages after its reference to estoppel, and it did not cite any cases relating to estoppel or even relate its discussion of full performance to its discussion of estoppel. Given this, estoppel is not before this court. . SM & R did cite one case, Grundy County Nat'l Bank v. Westfall, 13 Ill.App.3d 839, 301 N.E.2d 28 (3d Dist.1973), that held that a party’s substantial performance could take a contract outside the statute of frauds. That case, however, was not a UCC case and could not have told the district court how Illinois would treat nonstat-utory exceptions to § 2-201. The court dismissed that case as irrelevant to cases under the UCC. SM & R also cited a case, R.S. Bennett & Co. v. Economy Mechanical Industries, 606 F.2d 182 (7th Cir.1979) that held that Illinois law would apply promissory" }, { "docid": "3320227", "title": "", "text": "(“A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.”). Cf. Williams v. Superior Court of San Diego County, 216 Cal.App.3d 378, 264 Cal.Rptr. 677 (1989) (in action for oral contract, trial court did not abuse discretion in disregarding employer’s representation to INS of three year expected employment of plaintiff). Leo Burnett made its statement to the INS to procure a visa for a prospective employee who had already quit his prior job, with no intention that Geva rely upon the representation. Geva simply has not alleged or presented sufficient facts to justify submitting his promissory estoppel theory to the trier of fact. By deciding the promissory estoppel issue in this manner, we decline defendant’s invitation to attempt to divine, yet again, the boundary between Illinois’ promissory estoppel doctrine and the statute of frauds. In the now aging decision in Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), the Illinois Supreme Court reiterated its position that the doctrine of equitable estoppel could not be used to overcome a statute of frauds defense without some proof that the broken promise was in fact a misrepresentation of the promisor’s intention at the time it was issued. As noted above, the modern doctrine of promissory estoppel of course contains no such element of misrepresentation. Some Illinois courts after Sinclair, however, assumed that promissory estoppel would acquire a misrepresentation dimension when used to overcome a defense based on the statute of frauds. See, e.g., Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc., 72 Ill.App.3d 806, 28 Ill.Dec. 802, 391 N.E.2d 1 (1979). In the two and one-half decades since Sinclair, promissory estoppel experienced growth, and a separate codification of the statute of frauds — under the Uniform Commercial Code’s article on sales, Ill.Rev.Stat. ch. 26, 112-201 (1989) — took a carefully circumscribed form. The combination of these developments led this court in R.S. Bennett & Co. v. Economy Mechanical Indus., Inc., 606 F.2d 182 (7th Cir.1979), to reject the" }, { "docid": "3143828", "title": "", "text": "v. Economy Mechanical Industries, Inc., 606 F.2d 182, 187 (7th Cir.1979), in which we predicted, “not without some difficulty, [that] the Illinois Supreme Court would permit the plaintiff to seek recovery on a promissory estoppel theory” even though the defendant “successfully defends on the basis of the statute of frauds.” We have since become less sure of the prediction made in R.S. Bennett, observing that “there is arguably some question with respect to whether the Illinois Supreme Court would allow a party to raise the statute of frauds as a defense in an action premised upon promissory estop-pel, especially in cases arising under the U.C.C.” Evans v. Fluor Distribution Com panies, 799 F.2d 364, 368 (7th Cir.1986). See, also, Monetti, S.P.A. v. Anchor Hocking Corporation, 931 F.2d 1178, 1186 (7th Cir.1991) (summarizing arguments for and against the position taken in R.S. Bennett and noting that the question had not been resolved by the Illinois courts) and Goldstick v. ICM Realty, 788 F.2d 456, 464 (7th Cir.1986) (“We hesitate to rely on Bennett because there is a question whether it is a correct statement of Illinois law.”). We need not enter this thicket to decide whether in Illinois the doctrine of promissory estoppel can save a claim otherwise barred by the statute of frauds because A-Abart has failed to make the required showing to sustain a claim of promissory estoppel. In Illinois, the “elements of promissory estoppel are: a promise unambiguous in terms, with reliance thereon by the promisee, with such reliance being expected and foreseeable by the promisor, and with the promisee in fact relying on the promise to his injury.... [I]n order to invoke the doctrine, the promisee’s reliance must be reasonable and justifiable.” Geva v. Leo Burnett Company, 931 F.2d 1220, 1223 (7th Cir.1991) (quoting Vincent Di Vito, Inc. v. Vollmar Clay Products Co., 179 Ill.App.3d 325, 128 Ill.Dec. 393, 395, 534 N.E.2d 575, 577 (3d Dist.1989)). A-Abart has not produced any evidence or made an argument demonstrating that it relied to its detriment on the alleged promise by Emerson to sell it the ceiling fans. Thus, the" }, { "docid": "3320229", "title": "", "text": "misrepresentation requirement when promissory estoppel was invoked to sustain an oral sales contract. Later, however, in Evans v. Fluor Distribution Cos., 799 F.2d 364 (7th Cir.1986), this court suggested that Bennett’s, result might be limited to UCC cases, given several Illinois appellate court decisions in the 1970s that continued to follow Sinclair outside the sales context. Our attempted reconciliation of Illinois case law may be premature, as the narrowing and questioning of the Sinclair rule goes on in the Illinois Appellate Court. Notwithstanding Evans, one Illinois court investigating a non-UCC issue lamented the continuing conflict among Illinois precedents on the interaction of promissory estoppel and the statute of frauds. Phillips v. Britton, 162 Ill.App.3d 774, 785, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (1987). Later still, another Illinois appellate decision, Derby Meadows Utility Co. v. Inter-Continental Real Estate, 202 Ill.App.3d 345, 147 Ill.Dec. 646, 559 N.E.2d 986 (1990), allowed the plaintiff to invoke promissory estoppel to obviate a statute of frauds defense outside the sales context. See also Gold, 193 Ill.App.3d 339, 140 Ill.Dec. 9, 549 N.E.2d 660 (in sale of business, promissory estoppel is available despite statute of frauds defense); Restatement (Second) of Contracts § 139 comment a & illustrations 1 and 2 (section on statute of frauds recognizing that promissory estop-pel survives statute of frauds defense). For an interesting review of this issue, see Judge Posner’s opinion for the court in Monetti, S.P.A. v. Anchor Hocking Corp., 931 F.2d 1178, 1186 (7th Cir.1991). All this having been said, however, we agree with the district court that Geva showed no promise by Leo Burnett on which he could reasonably have relied. It is, therefore, unnecessary to speculate on the ultimate durability of Sinclair as an interpretation of Illinois law. Geva’s employee handbook claim must fail as well. From our review of the record, it does not appear that the claim was properly preserved below. Plaintiff apparently failed to present it in his response to defendant’s motion for summary judgment (leading the district court to ignore the issue altogether in its disposition). Defendant, in turn, chose not to argue" }, { "docid": "3677051", "title": "", "text": "partial performance is an equitable remedy, applicable in the absence of a legal remedy. Gibbons v. Stillwell, 149 Ill.App.3d 411, 102 Ill.Dec. 864, 500 N.E.2d 965 (1986). When past performance by one party changes the relation of the parties, and adequate compensation for the loss by a judgment for damages, or restoration to their former condition is impossible, the Statute of Frauds will not act as a bar to the completion of the contract. Such is not the case here as Taylor does not claim that compensatory damages are unavailable to him. Additionally, there are sound public policy reasons for refusing to apply the doctrine of partial performance in the employment context. To allow an employee to escape the Statute of Frauds just because he commenced work in his new position would render the full performance requirement of the statute meaningless. This would mean that in any case where the plaintiff alleged that he had given up one job and started work under the terms of an oral employment contract, the employer would be precluded from asserting the Statute of Frauds. The public policy of Illinois to deter false and fraudulent claims which is embodied in the Statute of Frauds would be completely nullified if oral contracts for permanent employment did not have to comply with its requirements. Mariane v. School Directors of District 40, 154 Ill.App.3d 404, 506 N.E.2d 981, 983; appeal denied, 116 Ill.2d 561, 515 N.E.2d 111 (1987). Canteen also correctly argues that Taylor’s claim under the promissory estoppel doctrine is not an exception to the Statute of Frauds. Canteen relies upon the Seventh Circuit opinion in Evans v. Fluor Distribution Companies, Inc., 799 F.2d 364 (7th Cir.1986) which held that an employee’s action based on the doctrine of promissory estoppel was barred by the Illinois Statute of Frauds where the alleged oral agreement could not be performed in one year. The Evans holding was said to be mandated by the Illinois Supreme Court’s decision in Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 510, 202 N.E.2d 516 (1964) that a claim of promissory estoppel does not" }, { "docid": "2084569", "title": "", "text": "claim since he failed to raise it in the district court. Evans counters by noting that although his complaint may not have been “artfully” constructed, “every aspect of this case has made [his] theory obvious.” We recognize, as Evans points out, that the district court did not rely solely on the pleading defect to reach its decision, but rather held in the alternative that even if promissory estoppel had been properly pleaded it would have been to no avail. After reviewing the record, however, we have reason to question Evans’s assertion that his claim based upon promissory estop-pel was made “obvious” throughout the litigation in the district court. We are therefore hesitant to even reach Evans’s contention that the trial court erred in rejecting the promissory estoppel claim on its merits. Even if we were to accept Evans’s argument that promissory estoppel in fact formed the basis of his action, we would nonetheless agree with the district court that this doctrine does not serve as an exception to the statute of frauds in Illinois under the circumstances of this case. In Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952), a pre-Uniform Commercial Code sale of goods case, the Illinois Supreme Court held that promissory estoppel is not a viable exception to the statute of frauds. 411 Ill. at 162-67, 103 N.E.2d 485. Although, as we noted in Goldstick, 788 F.2d at 464, Ozier preceded the modern development of the doctrine of promissory estoppel, the Illinois Supreme Court has since implicitly rejected the application of the doctrine to overcome a statute of frauds defense in a case arising outside of the U.C.C. See Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 510, 202 N.E.2d 516 (1964) (holding that only “fraud or material misrepresentation” relating “to an existing or past event, not to a promise or prognostication concerning a future happening,” will estop a party from asserting the statute of frauds as a defense). See also Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc., 72 Ill.App.3d 806, 810-11, 28 Ill.Dec. 802, 391 N.E.2d 1 (1st Dist.1979); Ceres Illinois, Inc. v. Illinois" }, { "docid": "11117930", "title": "", "text": "of misrepresentation by the promisor. See also Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952). Equitable estoppel is similar to promissory estoppel, which was not recognized in Illinois when Sinclair was decided, in all but one element: the gravamen of equitable estoppel is material misrepresentation of past or present circumstances. Promissory estoppel, in contrast, merely requires the allegation of a promise. R.S. Bennett & Co. v. Economy Mech Indus., 606 F.2d 182, 187 (7th Cir. 1979) (footnote omitted). Thus, under Sinclair, the element essential to overcoming a defense based upon the Statute of Frauds, misrepresentation, is missing from promissory estoppel. The Illinois Supreme Court revisited the issue tangentially in Ceres Illinois v. Illinois Scrap Processing, 114 Ill.2d 133, 102 Ill.Dec. 379, 500 N.E.2d 1 (1986). In Ceres, the Court reaffirmed the requirement that the plaintiff must show misrepresentation in order to trump the Statute of Frauds. However, Ceres also opened the door to promissory estoppel-type claims ever so slightly by broadening the definition of equitable estoppel. Under Ceres, in order to use estoppel to defeat the Statute of Frauds, the plaintiff need not show conduct that is fraudulent in the “legal sense.” Rather, the test is “whether in all the circumstances of the case conscience and [the] duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct.” Ceres, 102 Ill.Dee. at 386, 500 N.E.2d at 7 (citation omitted). Thus, while Ceres has softened Sinclair indirectly, it remains unclear whether promissory estoppel can trump the Statute of Frauds. Lower Illinois courts have pronounced conflicting resolutions of this issue. On the one hand, there is a line of cases that categorically deny the applicability of promissory estoppel to a Statute of Frauds defense. For example, in Dickens, an employment ease, the appellate court unequivocally rejected promissory estoppel as an exception to the statute of frauds: “There is a difference between equitable estoppel, which is an exception to the statute of frauds, and promissory estoppel, which is not. If promissory estoppel were an exception to the statute of frauds, contracts could easily be" }, { "docid": "23649194", "title": "", "text": "to get around the statute of frauds is particularly troublesome. Employment at will (i.e., without a contract of employment) remains the dominant type of employment relationship in this country, and would be seriously undermined if employees could use the doctrine of promissory estoppel to make alleged oral contracts of employment enforceable. Reliance is easily, perhaps too easily, shown in the employment setting. Agreeing to work for a particular employer, thereby giving up alternative opportunities for employment, can easily be described as reliance on the employer’s alleged oral promises concerning the terms of employment. In Bennett, a case involving a contract for the sale of goods, we relied heavily on a then-recent decision of the Illinois Appellate Court, Jenkins & Boiler Co. v. Schmidt Iron Works, Inc., 36 Ill.App.3d 1044, 344 N.E.2d 275 (1976), but we failed to cite the even more recently decided case of Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc., 72 Ill.App.3d 806, 809-11, 28 Ill.Dec. 802, 805, 391 N.E.2d 1, 4 (1979), which both held that the statute of frauds is a defense to promissory estoppel and described Jenkins as a case outside of rather than rejecting the statute of frauds — and indeed the opinion in Jenkins is quite unclear in this respect. An even more recent case shows an evident reluctance to allow the statute of frauds to defeat a claim of promissory estoppel, but, as in Jenkins, it is unclear whether the court thought that the promise, even if contractual, would have been within the scope of the statute. See Hux v. Woodcock, 130 Ill.App.3d 721, 724, 86 Ill.Dec. 44, 47, 474 N.E.2d 958, 961 (1985). Many cases from other jurisdictions support Bennett. See Allen M. Campbell Co. v. Virginia Metal Industries, Inc., 708 F.2d 930 (4th Cir.1983); Farnsworth, supra, § 6.12. They reflect a larger trend: as Farnsworth remarks, the statute of frauds “has been the subject of constant erosion.” Id., § 6.1, at 373. Maybe the cases that erode it in the area of promissory estoppel exaggerate the ability of courts to distinguish true oral promises from fabricated promises and language misunderstood" }, { "docid": "4407530", "title": "", "text": "reliance on this promise. Third, the reliance must have been expected and foreseeable. Finally, there must be some injury resulting form the reliance. Simmons, 727 F.Supp. at 443 (citing Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1264 (7th Cir.1985)); Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 309-10, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990) Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co., 90 Ill.App.3d 768, 770, 45 Ill.Dec. 876, 878, 413 N.E.2d 209, 211 (3d Dist.1980). The promissory estoppel doctrine is generally invoked in situations in which the plaintiff is unable to prove the existence of an actual contract. This court has in the past expressed some hesitation regarding the applicability of the promissory estoppel theory in the employment contract context, see Massouras v. Litton Industrial Products, Inc., No. 84 C 2618, 1985 WL 9361 at 2 (N.D.Ill. Feb. 4, 1985), for a permissive view of that doctrine would likely undermine the presumption of employment at will, to which Illinois courts have historically adhered. Our doubts have recently been echoed in the Seventh Circuit. See Goldstick, 788 F.2d at 465. But because the Program had not raised this argument, we will proceed to consider the merits of the promissory estoppel claim. If this case ultimately goes to trial, moreover, it would perhaps be best to tackle the difficult question of where the Illinois Supreme Court would likely stand on this issue after the jury has resolved the contract claim. The Program attacks Lamaster’s promissory estoppel claim initially on the grounds that the promise to Lamaster was not unambiguous. Whether a promise that is “clear and definite” for contract formation purposes is necessarily “unambiguous” for promissory estoppel purposes does not appear ever to have been squarely addressed, although there is some indication that a promise that fails the clear-and-definite test will not support a promissory estoppel claim, see Simmons, 727 F.Supp. at 443-44; Phillips v. Britton, 162 Ill.App.3d 774, 785-86, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (5th Dist.1987). The promise in this case, however, was sufficiently straightforward and explicit to satisfy the requirement" }, { "docid": "13300855", "title": "", "text": "See, for instance, Meyer, 56 Ill.Dec. at 711, 427 N.E.2d at 1257. In any event, it is evident that SM & R argued them as separate doctrines below; its reference to full performance appeared several pages after its reference to estoppel, and it did not cite any cases relating to estoppel or even relate its discussion of full performance to its discussion of estoppel. Given this, estoppel is not before this court. . SM & R did cite one case, Grundy County Nat'l Bank v. Westfall, 13 Ill.App.3d 839, 301 N.E.2d 28 (3d Dist.1973), that held that a party’s substantial performance could take a contract outside the statute of frauds. That case, however, was not a UCC case and could not have told the district court how Illinois would treat nonstat-utory exceptions to § 2-201. The court dismissed that case as irrelevant to cases under the UCC. SM & R also cited a case, R.S. Bennett & Co. v. Economy Mechanical Industries, 606 F.2d 182 (7th Cir.1979) that held that Illinois law would apply promissory estoppel in cases governed by § 2-201. However, SM & R cited this case in its passing reference to estoppel, and SM & R does not complain that the district court erred by refusing to consider its estoppel argument. Thus, SM & R cannot rely on its citation to R.S. Bennett to alert the district court to the applicability of non-statutory exceptions to § 2-201 in Illinois. . SM & R asserts in passing that questions concerning jewelry department employee identity, longevity of service, and eligibility for vacation pay are still unanswered. SM & R cites no record support for this assertion, and has not even raised it as a ground for reversing the summary judgment. And (here we go again), SM & R never raised this argument in the district court." }, { "docid": "23649193", "title": "", "text": "the district judge has not ruled on the question. We may seem to have overlooked an even more direct route to the conclusion that the statute of frauds is not a bar: our decision in R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., 606 F.2d 182, 187-89 (7th Cir.1979), which held that Illinois’ statute of frauds does not apply in promissory estoppel cases. We hesitate to rely on Bennett because there is a question whether it is a correct statement of Illinois law. Two decisions of the Illinois Supreme Court had rejected the position that we later adopted in Bennett. One of them, it is true, Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952), preceded the modern development of promissory estoppel. And the other, Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), did not discuss promissory estoppel, though a comparison with the Illinois Appellate Court’s opinion in the case shows that it implicitly rejected it. More important, Sinclair involved an employment contract, where the use of promissory estoppel to get around the statute of frauds is particularly troublesome. Employment at will (i.e., without a contract of employment) remains the dominant type of employment relationship in this country, and would be seriously undermined if employees could use the doctrine of promissory estoppel to make alleged oral contracts of employment enforceable. Reliance is easily, perhaps too easily, shown in the employment setting. Agreeing to work for a particular employer, thereby giving up alternative opportunities for employment, can easily be described as reliance on the employer’s alleged oral promises concerning the terms of employment. In Bennett, a case involving a contract for the sale of goods, we relied heavily on a then-recent decision of the Illinois Appellate Court, Jenkins & Boiler Co. v. Schmidt Iron Works, Inc., 36 Ill.App.3d 1044, 344 N.E.2d 275 (1976), but we failed to cite the even more recently decided case of Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc., 72 Ill.App.3d 806, 809-11, 28 Ill.Dec. 802, 805, 391 N.E.2d 1, 4 (1979), which both held that the statute of frauds is a" }, { "docid": "2084572", "title": "", "text": "governed by the U.C.C. 606 F.2d at 188. In so ruling, however, we noted that although “[t]he scope of the statute of frauds applicable to sales of goods has narrowed considerably since Ozier,” the general statute of frauds which controlled in Sinclair in the context of an employment contract has “not changed significantly” since that case was decided. 606 F.2d at 188 and n. 6 (emphasis added). Moreover, although limited to cases arising under the U.C.C., the decision in Bennett has been criticized since it arguably does not represent “a correct statement of Illinois law.” Goldstick, 788 F.2d at 464. In Libby-Broadway, supra, for example, the court noted that Jenkins, upon which we placed heavy reliance in Bennett, was actually a case outside of the statute of frauds as opposed to one in which promissory estoppel had served as an exception to the statute. 72 Ill.App.3d at 810-11, 28 Ill.Dec. 802, 391 N.E.2d 1. Relying on this observation, among others, the panel in Goldstick accordingly concluded that it regarded the decision in Bennett “as open for reexamination.” 788 F.2d at 466. In the end, the only conclusion that can be drawn from all of this is that there is arguably some question with respect to whether the Illinois Supreme Court would allow a party to raise the statute of frauds as a defense in an action premised upon promissory estoppel, especially in cases arising under the U.C.C. Nonetheless, the decision in Sinclair remains good law and there has been no clear indication that the Court is planning to change its course with respect to that decision. As we noted in Goldstick, there appear to be “only two recent cases in which [the Illinois Supreme Court] dealt with the statute of frauds, and though in both the defense was rejected, they do not provide strong evidence that the [C]ourt has been swept up in the ‘constant erosion’ that has eaten away the statute in other jurisdictions.” 788 F.2d at 466 (citing Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975); Lee v. Central National Bank & Trust Co., 56 Ill.2d" }, { "docid": "11117928", "title": "", "text": "turn. A. Promissory Estoppel In Count III, Genin claims promissory estoppel. Promissory estoppel is an equitable tool that allows the court to infer a contract where none would otherwise exist. Dickens v. Quincy College Corp., 245 Ill. App.3d 1055, 185 Ill.Dec. 822, 826, 615 N.E.2d 381, 385 (1993). The elements of promissory estoppel are: (1) a promise unambiguous in terms; (2) with reliance thereon by the promisee; (3) with such reliance being expected and foreseeable by the promisor; (4) and with the promisee in fact relying on the promise to his injury. A-Abart Elec. Supply v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir.1992) (citations omitted); Phillips v. Britton, 162 Ill.App.3d 774, 114 Ill. Dec. 537, 545, 516 N.E.2d 692, 700 (1987). In order to invoke the doctrine, the promisee’s reliance must be “reasonable and justifiable.” Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991) (citations omitted). It is clear that a plaintiff may recover on a promissory estoppel theory despite the absence of a contract. Quake Constr. v. American Airlines, 141 Ill.2d 281, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990). Were there not a statute of frauds problem, this issue would be much clearer. Unfortunately, the precise question presented, whether the defense of promissory estoppel can take a contract out of the statute of frauds is, at best, an unsettled one in the Illinois courts. Phillips v. Britton, 162 Ill. App.3d 774, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (1987) (“The law in Illinois is unsettled as to whether an action based on promissory estoppel can prevail, where, as here, the action would otherwise fall within the Statute of Frauds.”). Two cases, one from the Illinois Supreme Court, the other from the Seventh Circuit, are the major precedents on this question. We address those cases, and their progeny, respectively. The aging landmark case in Illinois is Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), where the Illinois Supreme Court found that equitable estoppel, a doctrine similar to promissory estoppel, could not overcome a statute of frauds defense absent proof" }, { "docid": "23649192", "title": "", "text": "on a concern with the tendency of evidence to go stale with the passage of time, but the foundation is weak because the limitation applies even if the promise is broken the day after it is made and suit on it is brought immediately. The Illinois courts evidently share the prevailing dislike for the provision, for in a case very like this the Illinois Appellate Court held that the statute of frauds was not a bar. See Hubbard v. Logsdon, 56 Ill.App.3d 366, 373-74, 14 Ill.Dec. 296, 301, 372 N.E.2d 101, 106 (1978). As here, the agreement called for payment over 10 years, and there was evidence that full payment at once would have been acceptable to the prom-isee. Direct evidence of acceptability has not been offered here but the inference from the low interest rate is very strong. We very much doubt that an Illinois court faced with the statute of frauds defense in this case would hold that the defendant’s alleged promise is not within it, although we hesitate to so hold when the district judge has not ruled on the question. We may seem to have overlooked an even more direct route to the conclusion that the statute of frauds is not a bar: our decision in R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., 606 F.2d 182, 187-89 (7th Cir.1979), which held that Illinois’ statute of frauds does not apply in promissory estoppel cases. We hesitate to rely on Bennett because there is a question whether it is a correct statement of Illinois law. Two decisions of the Illinois Supreme Court had rejected the position that we later adopted in Bennett. One of them, it is true, Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952), preceded the modern development of promissory estoppel. And the other, Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), did not discuss promissory estoppel, though a comparison with the Illinois Appellate Court’s opinion in the case shows that it implicitly rejected it. More important, Sinclair involved an employment contract, where the use of promissory estoppel" }, { "docid": "11117934", "title": "", "text": "There is yet a third approach. Some Illinois cases since Sinclair have imputed the misrepresentation requirement of equitable estoppel to promissory estoppel as well when the doctrine is used in an attempt to overcome the statute of frauds. See, e.g., Libby-Broadway Drive-In v. McDonald’s Sys., 72 Ill.App.3d 806, 28 Ill.Dec. 802, 391 N.E.2d 1 (1979). Precious little of additional value can be gleaned from federal attempts to apply Illinois law in this area. Noting that the law of estoppel has evolved significantly since, the Illinois Supreme Court had addressed the issue in Sinclair, the Seventh Circuit originally predicted, “not without some difficulty, [that] the Illinois Supreme Court would permit the plaintiff to seek recovery on a promissory estoppel theory” in a case governed by article 2 of the commercial code even though the defendant “successfully defends on the basis of the statute of frauds.” R.S. Bennett, 606 F.2d at 187. However, that prediction did not materialize, and the Seventh Circuit now routinely questions the validity of the result in R.S. Bennett. See Geva v. Leo Burnett Co., 931 F.2d 1220, 1224-25 (7th Cir.1991) (explaining R.S. Bennett). In Goldstick v. ICM Realty, 788 F.2d 456, 464 (7th Cir.1986), the court stated “[w]e hesitate to rely on Bennett because there is a question whether it is a correct statement of Illinois law.” In fact, the court seemed to retreat almost completely from Bennett: “If forced to guess what the Illinois Supreme Court would do in a case like this we would guess (a word used deliberately) that it would hold the statute of frauds applicable to promissory estoppel (since to do otherwise would require the court to overrule two of its decisions), and thus would disapprove Bennett.” Id., 788 F.2d at 466. The handful of Circuit Court cases on this issue allow follow the same rhetorical model, and thus provide little help to us. See A-Abart Elec. Supply v. Emerson Elec. Co., 956 F.2d 1399, 1303 (7th Cir.1992) (noting the court’s retreat from R.S. Bennett ); Monetti, S.P.A. v. Anchor Hocking Corp., 931 F.2d 1178, 1186 (7th Cir.1991) (summarizing arguments for and" }, { "docid": "11117933", "title": "", "text": "Mann, 161 Ill.App.3d 424, 112 Ill.Dec. 903, 908, 514 N.E.2d 566, 571 (1987) (applying Sinclair and Ozier and requiring misrepresentation to trump statute of frauds). On the other hand is a string of Illinois eases that take the opposite position. Leekha v. Wentcher, 224 Ill.App.3d 342, 166 Ill. Dec. 599, 586 N.E.2d 557 (1991), a case involving an agreement to sell real estate, lends support to the argument that promissory estoppel can trump the statute of frauds. Though the court rejected application of the doctrine because the plaintiffs could not show action in reliance, it implicitly recognized the vitality of a promissory estoppel retort to the statute of frauds. Leekha, 166 Ill.Dec. 599, 604-05, 586 N.E.2d 557, 562-63. At least two other recent cases also held that the plaintiff could raise promissory estoppel despite a statute of frauds defense. See Derby Meadows Util. Co. v. Inter-Continental Real Estate, 202 Ill.App.3d 345, 147 Ill.Dec. 646, 655, 559 N.E.2d 986, 995 (1990); Gold v. Dubish, 193 Ill.App.3d 339, 140 Ill.Dec. 9, 13, 549 N.E.2d 660, 664 (1989). There is yet a third approach. Some Illinois cases since Sinclair have imputed the misrepresentation requirement of equitable estoppel to promissory estoppel as well when the doctrine is used in an attempt to overcome the statute of frauds. See, e.g., Libby-Broadway Drive-In v. McDonald’s Sys., 72 Ill.App.3d 806, 28 Ill.Dec. 802, 391 N.E.2d 1 (1979). Precious little of additional value can be gleaned from federal attempts to apply Illinois law in this area. Noting that the law of estoppel has evolved significantly since, the Illinois Supreme Court had addressed the issue in Sinclair, the Seventh Circuit originally predicted, “not without some difficulty, [that] the Illinois Supreme Court would permit the plaintiff to seek recovery on a promissory estoppel theory” in a case governed by article 2 of the commercial code even though the defendant “successfully defends on the basis of the statute of frauds.” R.S. Bennett, 606 F.2d at 187. However, that prediction did not materialize, and the Seventh Circuit now routinely questions the validity of the result in R.S. Bennett. See Geva v. Leo" }, { "docid": "11117929", "title": "", "text": "Ill.2d 281, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990). Were there not a statute of frauds problem, this issue would be much clearer. Unfortunately, the precise question presented, whether the defense of promissory estoppel can take a contract out of the statute of frauds is, at best, an unsettled one in the Illinois courts. Phillips v. Britton, 162 Ill. App.3d 774, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (1987) (“The law in Illinois is unsettled as to whether an action based on promissory estoppel can prevail, where, as here, the action would otherwise fall within the Statute of Frauds.”). Two cases, one from the Illinois Supreme Court, the other from the Seventh Circuit, are the major precedents on this question. We address those cases, and their progeny, respectively. The aging landmark case in Illinois is Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), where the Illinois Supreme Court found that equitable estoppel, a doctrine similar to promissory estoppel, could not overcome a statute of frauds defense absent proof of misrepresentation by the promisor. See also Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485 (1952). Equitable estoppel is similar to promissory estoppel, which was not recognized in Illinois when Sinclair was decided, in all but one element: the gravamen of equitable estoppel is material misrepresentation of past or present circumstances. Promissory estoppel, in contrast, merely requires the allegation of a promise. R.S. Bennett & Co. v. Economy Mech Indus., 606 F.2d 182, 187 (7th Cir. 1979) (footnote omitted). Thus, under Sinclair, the element essential to overcoming a defense based upon the Statute of Frauds, misrepresentation, is missing from promissory estoppel. The Illinois Supreme Court revisited the issue tangentially in Ceres Illinois v. Illinois Scrap Processing, 114 Ill.2d 133, 102 Ill.Dec. 379, 500 N.E.2d 1 (1986). In Ceres, the Court reaffirmed the requirement that the plaintiff must show misrepresentation in order to trump the Statute of Frauds. However, Ceres also opened the door to promissory estoppel-type claims ever so slightly by broadening the definition of equitable estoppel. Under Ceres, in order to use estoppel" }, { "docid": "11117931", "title": "", "text": "to defeat the Statute of Frauds, the plaintiff need not show conduct that is fraudulent in the “legal sense.” Rather, the test is “whether in all the circumstances of the case conscience and [the] duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct.” Ceres, 102 Ill.Dee. at 386, 500 N.E.2d at 7 (citation omitted). Thus, while Ceres has softened Sinclair indirectly, it remains unclear whether promissory estoppel can trump the Statute of Frauds. Lower Illinois courts have pronounced conflicting resolutions of this issue. On the one hand, there is a line of cases that categorically deny the applicability of promissory estoppel to a Statute of Frauds defense. For example, in Dickens, an employment ease, the appellate court unequivocally rejected promissory estoppel as an exception to the statute of frauds: “There is a difference between equitable estoppel, which is an exception to the statute of frauds, and promissory estoppel, which is not. If promissory estoppel were an exception to the statute of frauds, contracts could easily be implied and the statute of frauds easily avoided.” 185 Ill.Dec. at 827, 615 N.E.2d at 386. While the arguments against promissory estoppel in the employment context are considerably stronger than in the present case because of the doctrine of employment at will, the language in Dickens gives no indication of being limited to that setting. Similarly, in Cohn v. Checker Motors Corp., 233 Ill.App.3d 839, 175 Ill.Dec. 98, 599 N.E.2d 1112 (1992), a sales ease, the Appellate Court read Ceres as an outright affirmation of the equitable/promissory estoppel dichotomy. The court distinguished equitable estoppel, which requires misrepresentation, and is an exception to the statute of frauds, from promissory estoppel, which does not require misrepresentation and is not an exception: “However, in an attempt to trump the statute of frauds, a party must invoke the doctrine of equitable estoppel, which differs from promissory estoppel in that the party asserting it must additionally allege words of conduct amounting to misrepresentation or concealment of material facts.” 175 Ill.Dec. at 103, 599 N.E.2d at 1117. See also Fischer v." }, { "docid": "11117932", "title": "", "text": "implied and the statute of frauds easily avoided.” 185 Ill.Dec. at 827, 615 N.E.2d at 386. While the arguments against promissory estoppel in the employment context are considerably stronger than in the present case because of the doctrine of employment at will, the language in Dickens gives no indication of being limited to that setting. Similarly, in Cohn v. Checker Motors Corp., 233 Ill.App.3d 839, 175 Ill.Dec. 98, 599 N.E.2d 1112 (1992), a sales ease, the Appellate Court read Ceres as an outright affirmation of the equitable/promissory estoppel dichotomy. The court distinguished equitable estoppel, which requires misrepresentation, and is an exception to the statute of frauds, from promissory estoppel, which does not require misrepresentation and is not an exception: “However, in an attempt to trump the statute of frauds, a party must invoke the doctrine of equitable estoppel, which differs from promissory estoppel in that the party asserting it must additionally allege words of conduct amounting to misrepresentation or concealment of material facts.” 175 Ill.Dec. at 103, 599 N.E.2d at 1117. See also Fischer v. Mann, 161 Ill.App.3d 424, 112 Ill.Dec. 903, 908, 514 N.E.2d 566, 571 (1987) (applying Sinclair and Ozier and requiring misrepresentation to trump statute of frauds). On the other hand is a string of Illinois eases that take the opposite position. Leekha v. Wentcher, 224 Ill.App.3d 342, 166 Ill. Dec. 599, 586 N.E.2d 557 (1991), a case involving an agreement to sell real estate, lends support to the argument that promissory estoppel can trump the statute of frauds. Though the court rejected application of the doctrine because the plaintiffs could not show action in reliance, it implicitly recognized the vitality of a promissory estoppel retort to the statute of frauds. Leekha, 166 Ill.Dec. 599, 604-05, 586 N.E.2d 557, 562-63. At least two other recent cases also held that the plaintiff could raise promissory estoppel despite a statute of frauds defense. See Derby Meadows Util. Co. v. Inter-Continental Real Estate, 202 Ill.App.3d 345, 147 Ill.Dec. 646, 655, 559 N.E.2d 986, 995 (1990); Gold v. Dubish, 193 Ill.App.3d 339, 140 Ill.Dec. 9, 13, 549 N.E.2d 660, 664 (1989)." }, { "docid": "3320228", "title": "", "text": "Illinois Supreme Court reiterated its position that the doctrine of equitable estoppel could not be used to overcome a statute of frauds defense without some proof that the broken promise was in fact a misrepresentation of the promisor’s intention at the time it was issued. As noted above, the modern doctrine of promissory estoppel of course contains no such element of misrepresentation. Some Illinois courts after Sinclair, however, assumed that promissory estoppel would acquire a misrepresentation dimension when used to overcome a defense based on the statute of frauds. See, e.g., Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc., 72 Ill.App.3d 806, 28 Ill.Dec. 802, 391 N.E.2d 1 (1979). In the two and one-half decades since Sinclair, promissory estoppel experienced growth, and a separate codification of the statute of frauds — under the Uniform Commercial Code’s article on sales, Ill.Rev.Stat. ch. 26, 112-201 (1989) — took a carefully circumscribed form. The combination of these developments led this court in R.S. Bennett & Co. v. Economy Mechanical Indus., Inc., 606 F.2d 182 (7th Cir.1979), to reject the misrepresentation requirement when promissory estoppel was invoked to sustain an oral sales contract. Later, however, in Evans v. Fluor Distribution Cos., 799 F.2d 364 (7th Cir.1986), this court suggested that Bennett’s, result might be limited to UCC cases, given several Illinois appellate court decisions in the 1970s that continued to follow Sinclair outside the sales context. Our attempted reconciliation of Illinois case law may be premature, as the narrowing and questioning of the Sinclair rule goes on in the Illinois Appellate Court. Notwithstanding Evans, one Illinois court investigating a non-UCC issue lamented the continuing conflict among Illinois precedents on the interaction of promissory estoppel and the statute of frauds. Phillips v. Britton, 162 Ill.App.3d 774, 785, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (1987). Later still, another Illinois appellate decision, Derby Meadows Utility Co. v. Inter-Continental Real Estate, 202 Ill.App.3d 345, 147 Ill.Dec. 646, 559 N.E.2d 986 (1990), allowed the plaintiff to invoke promissory estoppel to obviate a statute of frauds defense outside the sales context. See also Gold, 193 Ill.App.3d 339, 140 Ill.Dec." } ]

[ { "docid": "8877656", "title": "", "text": "note several errors of law in the analysis contained in the Sun-spool-proposed conclusions of law which it adopted. It was error for the trial court to have implicitly required Richdel to prove that the prior art herein had been considered by the PTO; rather, the burden was on Sunspool to show that that prior art had not been considered. See Solder Removal Co. v. ITC, 65 C.C.P.A. 120, 582 F.2d 628, 633 n. 9, 199 USPQ 129, 133 n. 9 (1978). It was error for the trial court to have shifted the burden of proof and so require Richdel to prove facts necessary to a conclusion of nonobviousness. 35 U.S.C. § 282 permanently places the burden of proving facts necessary to a conclusion of invalidity on the party asserting such invalidity. Stratoflex, Inc., v. Aeroquip Corp., 713 F.2d 1530 (Fed.Cir.1983); Solder Removal, supra, 582 F.2d at 633, 199 USPQ at 133. It was error for the district court to assert that the differences between the claimed invention and the prior art had to be nonobvious; it is the claimed subject matter as a whole which § 103 says must be nonobvious, not the differences. It was error for the district court to derogate the likelihood of finding patentable invention in a combination of old elements. No species of invention is more suspect as a matter of law than any other. Attempted categorization for the purpose of determining varying “rules” detracts from what should be the sole question: whether the claimed invention would have been obvious within the meaning of § 108. Most, if not all, inventions are combinations and mostly of old elements. Stratoflex, supra, 713 F.2d at p. 1540. It was also error for the district court to assert that “innovation is not invention.” The terms are, at least since the 1952 Patent Act, legally synonymous. Innovation is always invention; it may not be patentable invention. “Invention,” since the advent of § 103, is no longer the prerequisite to patentability which it was prior to 1952. Graham v. .John Deere. The district court erred in saying: “Where a patent" } ]

[ { "docid": "23325899", "title": "", "text": "F.2d at 1540, 218 USPQ at 880. Mere misstatements of law in an opinion, unfortunate as they always are, do not in themselves conclusively establish that the appealed judgment was founded on legal error requiring reversal of that judgment or remand for a new trial. Yet it is also true that “the language in an opinion, or in a set of findings and conclusions, may indicate that numerous harmful errors of law produced an erroneous conclusion ...” Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co., 730 F.2d at 1458, 221 USPQ at 485. The present is such a case. Fundamental Error The basic error of law extant here lies in the district court’s evaluation of the claimed invention. That evaluation is reflected in the court’s statement that the difference between the Fromson invention and the prior art “is that the Fromson patent combines anodization, silication, and application of a light-sensitive substance into one process.” At no point did the court indicate, nor does the record indicate, a basis on which it can be said that the making of that combination would have been obvious when it was made. In a statement conceded by Advance to have been “perhaps unfortunate,” the district court characterized the ’461 patent as “a combination patent comprised exclusively of old elements.” That each “element” was old at the time the invention was made was undisputed in the PTO, at trial, and before this court. There is no basis in the law, however, for treating combinations of old elements differently in determining patentability. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d at 1540, 218 USPQ at 880. The critical inquiry is whether “there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.” Lindeman Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d at 1462, 221 USPQ at 488 (emphasis added). Where, as here, nothing of record plainly indicates that it would have been obvious to combine previously separate process steps into one process, it is legal error to conclude that a claim to" }, { "docid": "2366501", "title": "", "text": "also demonstrates that the motivation to combine the prior art to lock an object in place with barb elements would be provided by the knowledge of one skilled in the art. See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 297 n. 24, 227 USPQ 657, 667 n. 24 (Fed.Cir.1985) (noting that knowledge of one skilled in the art may provide motivation to combine). Although the district court determined that the commercial success of the invention supported a finding of nonobvious under § 103, this evidence is insufficient to rebut the clear teachings of Flicker and Takahashi. Further, no evidence suggests that the socket’s commercial success was related to the barb element. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1539, 218 USPQ 871, 879 (Fed.Cir.1983) (requiring nexus between merits of invention and evidence of secondary considerations). Accordingly, we conclude that the invention of claims 11 and 19 would have been obvious in light of the prior art and the socket that was on sale. These claims are, therefore, invalid under § 102(b)/103. CONCLUSION Because all of the claims at issue are invalid, we need not reach the other issues raised in the appeal and cross-appeal. AFFIRMED-IN-PART AND REVERSED-IN-PART. . Because claims 11 and 19 contain a barb element that, as discussed below, arguably was not in the device offered for sale, the validity of these claims depends on whether they would have been obvious in view of the prior art and what was offered for sale. . The district court seemingly based its § 103 nonobviousness determination primarily on its view that \"[n]o combination of prior art suggested by Wells teaches all of the limitations in claims 11 and 19.” In the context of a § 103 obviousness determination, this conclusion may be correct. Here, however, the only element not on sale was the barb." }, { "docid": "21141362", "title": "", "text": "to a receiver. The Gorike device and the Model 655 microphone both regulate the flow of air between the two chambers by adjusting the spacing between an annular ring and a fixed plate. However, the Model 655 also employs a felt ring between the ring and the plate to enable a more precise regulation. It is, of course, essential in evaluating an invention against the standards of 35 U.S.C. § 103 that hindsight and the disclosure of the patent in suit not be resorted to. See Jamesbury Corp. v. United States, 207 Ct.Cl. 516, 542, 518 F.2d 1384, 1398 (1975). Adherence to that principle is assured in this instance since all of the elements, and/or the motivation for a person skilled in the art to combine them in the manner taught by claim 1 of the patent in suit, are present in the prior art. Specifically, it would have been obvious to one of ordinary skill in the art viewing both Gorike and the Model 655 microphone to add the felt washer ring to the adjustment mechanism described in the Gorike patent in the proper position between the flange and disk to perform the same function as it did in the Model 655 microphone. The test is whether the combination taken as a whole is new and unobvious. Bowser, Inc. v. United States, 181 Ct.Cl. 834, 844, 388 F.2d 346, 351 (1967). The combination, as a whole, that results from the addition of an old element in corresponding positions of interchangeable devices, especially where the addition produces only the function it is known to perform and no new or unexpected function, has long been held to be obvious within the meaning of 35 U.S.C. § 103. See Ellicott Machine Corp. v. United States, 186 Ct.Cl. 655, 667, 405 F.2d 1385, 1391 (1969). CONCLUSION Because the structure of claim 1 of the Kuskin patent would have been obvious to one of ordinary skill in the art from the collective teachings of the Gorike patent and the Electro-Voice Model 655 microphone, claim 1 of the Kuskin patent must be held invalid for" }, { "docid": "8934600", "title": "", "text": "in determining whether a claimed invention would have been obvious is what the combined teachings of the references would have suggested to one of ordinary skill in the art.) Factors relevant to that test are: (a) the scope and content of prior art; (b) the differences between the prior art and the patented design; and (c) the level of ordinary skill in the art at the time the invention was made. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 556, 148 U.S.P.Q. 459, 467 (1966); Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1441-43, 221 U.S.P.Q. 97, 108 (Fed.Cir.1984). Obviousness is not established by “combining the teachings of prior art to produce the claimed invention, absent some teaching or suggestion that the combination be made.” In re Stencel, 828 F.2d 751, 4 U.S.P.Q.2d 1071 (Fed.Cir.1987); Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143, 227 U.S.P.Q. 543, 551 (Fed.Cir.1985); In re Corkill, 771 F.2d 1496, 1501-02, 226 U.S.P.Q. 1005, 1009-10 (Fed.Cir.1985). Secondary considerations such as commercial success, long-felt need and acquiescence are also relevant to the issue of validity. Graham, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. E. Presumption of validity and burden of proof Section 282, 35 U.S.C. creates a presumption that a patent is valid and imposes the burden on the attacker to prove invalidity by clear and convincing evidence. Hughes Tool Co. v. Dresser Indus., Inc., 816 F.2d 1549, 2 U.S.P.Q.2d 1396 (Fed.Cir.), cert. denied, — U.S. -, 108 S.Ct. 261, 98 L.Ed.2d 219 (1987); Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730 F.2d 1452, 1459, 221 U.S.P.Q. 481, 486 (Fed.Cir.1984). That burden remains upon the party asserting invalidity until final decision. Jones v. Hardy, 727 F.2d 1524, 220 U.S.P.Q. 1021 (Fed.Cir.1984) “Introduction of more pertinent art than that considered by the examiner does not ... weaken or destroy the presumption. Nor does such introduction ‘shift’ the basic burden of persuasion_ Such introduction can, of course, facilitate the challenger’s carrying of that burden.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 U.S.P.Q." }, { "docid": "22986827", "title": "", "text": "involved.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983). In order to prevent a hindsight-based obviousness analysis, we have clearly established that the relevant inquiry for determining the scope and content of the prior art is whether there is a reason, suggestion, or motivation in the prior art or elsewhere that would have led one of ordinary skill in the art to combine the references. See, e.g., In re Rouffet, 149 F.3d 1350, 1359, 47 USPQ2d 1453, 1459 (Fed.Cir.1998) (“[T]he Board must identify specifically ... the reasons one of ordinary skill in the art would have been motivated to select the references and to combine them to render the claimed invention obvious.”); In re Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617 (“Our case law makes clear that the best defense against the subtle but powerful attraction of a hindsight-based obviousness analysis is rigorous application of the requirement for a showing of the teaching or motivation to combine prior art references.”). “Determining whether there is a suggestion or motivation to modify a prior art reference is one aspect of determining the scope and content of the prior art, a fact question subsidiary to the ultimate conclusion of obviousness.” SIBIA Neurosciences, Inc. v. Cadus Pharma. Corp., 225 F.3d 1349, 1356, 55 USPQ2d 1927, 1931 (Fed.Cir.2000); Tec Air, Inc. v. Denso Mfg., Inc., 192 F.3d 1353, 1359, 52 USPQ2d 1294, 1298 (Fed.Cir.1999) (stating that the factual underpinnings of obviousness include whether a reference provides a motivation to combine its teachings with those of another reference). The district court concluded that it would have been obvious to combine screw anchors and metal brackets, because the need for a bracket “was apparent.” Because there is “a general rule that combination claims can consist of combinations of old elements as well as new elements,” Clearstream Wastexvater Sys. v. Hydro-Action, Inc., 206 F.3d 1440, 1446, 54 USPQ2d 1185, 1189-90 (Fed.Cir.2000), “[t]he notion ... that combination claims can be declared invalid merely upon finding similar elements in separate prior patents would necessarily destroy virtually all patents and cannot be the" }, { "docid": "21301132", "title": "", "text": "independent claims 17 and 46 and dependent claims 15, 30, 44, and 58 claim patentable subject matter under § 101, the other requirements for patentability, including non-obviousness, must still be satisfied. See Diehr, 450 U.S. at 191, 101 S.Ct. 1048. Here, claims 17 and 46 at most merely add a modern general purpose computer to an otherwise un-patentable mental process and claims 15, 30, 44, and 58 merely add modern communication devices. The routine addition of modern electronics to an otherwise unpat-entable invention typically creates a prima facie case of obviousness. Moreover, there is no pertinent evidence of secondary considerations because the only evidence offered is of long-felt need for the unpat-entable mental process itself, not long-felt need for the combination of the mental process and a modern communication device or computer. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1539 (Fed. Cir.1983) (“A nexus is required between the merits of the claimed invention and the evidence offered, if that evidence is to be given substantial weight enroute to conclusion on the obviousness issue.”); Bourns, Inc. v. United States, 210 Ct.Cl. 642, 537 F.2d 486, 497 (1976) (noting that secondary considerations must be “attributable to the combination of the ... claims” to be worthy of consideration). Thus, it may be that these claims are unpatentable as obvious under § 103. However, we do not now decide this issue. Rather, having concluded that independent claims 17 and 46 and dependent claims 15, 30, 44, and 58 claim patentable subject matter, we remand to the PTO to determine in the first instance whether the addition of general purpose computers or modern communication devices to Comis-key’s otherwise unpatentable mental pro cess would have been non-obvious to a person of ordinary skill in the art. CONCLUSION We conclude that Comiskey’s independent claims 1 and 32 and dependent claims 2-14, 16, 33-43, and 45 do not claim patentable subject matter. While we conclude that independent claims 17 and 46 (and their dependent claims) and dependent claims 15, 30, 44, and 58 recite statutory subject matter, we remand to the PTO to determine in the" }, { "docid": "2366500", "title": "", "text": "2 would bear against the top edge of card 7,” as shown in Figure 4 of the patent. Both pieces of prior art teach using a barb-like element to hold the desired object into place. Additionally, both consider uses in electrical settings, and Fricker particularly notes the use of the barb element to hold the object in a position to maintain electrical contact. Similarly, the barb in the Pfaff patent is used to hold the carrier in place, even though it also scrapes oxidation from the carrier and provides electrical contact. Notwithstanding these additional features, the teachings of Flicker and Takahashi thus provide sufficient motivation to combine the barb-like element in the prior art with what was offered for sale to yield the invention in claims 11 and 19. See In re Kemps, 97 F.3d 1427, 1430, 40 USPQ2d 1309, 1311 (Fed.Cir. 1996) (noting motivation to combine in prior art need not be identical to that of applicant) (citing In re Dillon, 919 F.2d 688, 693, 16 USPQ2d 1897,1901 (Fed.Cir.1990) (in banc)). Unrebutted expert testimony also demonstrates that the motivation to combine the prior art to lock an object in place with barb elements would be provided by the knowledge of one skilled in the art. See Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 297 n. 24, 227 USPQ 657, 667 n. 24 (Fed.Cir.1985) (noting that knowledge of one skilled in the art may provide motivation to combine). Although the district court determined that the commercial success of the invention supported a finding of nonobvious under § 103, this evidence is insufficient to rebut the clear teachings of Flicker and Takahashi. Further, no evidence suggests that the socket’s commercial success was related to the barb element. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1539, 218 USPQ 871, 879 (Fed.Cir.1983) (requiring nexus between merits of invention and evidence of secondary considerations). Accordingly, we conclude that the invention of claims 11 and 19 would have been obvious in light of the prior art and the socket that was on sale. These claims are, therefore, invalid" }, { "docid": "14227927", "title": "", "text": "'537 patent. The’Board seemed to believe that the “reasonable expectation of success” inquiry looked to whether one would reasonably expect the prior art references to operate as those references intended once combined. That is not the correct inquiry — one must have a motivation to combine accompanied by a” reasonable expectation of achieving what is claimed in the patent-at-issue. The Board’s reliance on the absence of a reasonable expectation of success was, thus, improper. See id. at *5-6 (citing KSR, 550 U.S. at 421, 127 S.Ct. 1727 to support the proposition “that a conclusion of obviousness requires a reasonable expectation of success”). Yet this court “sit[s] to review judgments, not opinions.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1540 (Fed.Cir.1983). And while the Board conflated two different legal concepts — reasonable expectation of success and motivation to combine — it nevertheless made sufficient factual findings to support its judgment that .-the claims at issue are not invalid. It was IBS’s burden , to demonstrate. both “that a skilled artisan would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the skilled artisan would have had a reasonable -expectation .of success in doing so.”; Kinetic Concepts, Inc. v. Smith & Nephew, Inc. 688 F.3d 1342, 1360 (Fed.Cir.2012) (quoting Procter & Gamble Co. v. Teva Pharm. USA, Inc., 566 F.3d 989, 994 (Fed.Cir.2009) (internal quotation marks omitted)); In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1068-69 (Fed.Cir.2012). Despite the loose language employed by the Board, its factual findings support its conclusion that the claims are not invalid. IBS argued in its revised initial petition to the Board that the combination of Tsien or Ju with Zavgorodny was based entirely on a shared purpose: SBS. IBS argued that an ordinary artisan would have a motivation to combine Tsien or Ju with Zavgorodny: “[0]ne of ordinary skill in the art, in order to improve the efficiency, reliability, and robustness of the sequencing by synthesis method, taught in Tsien, would have been motivated to,use other protecting groups that meet the criteria" }, { "docid": "3614015", "title": "", "text": "as a rule of law applicable broadly to patent cases because virtually every claimed invention is a combination of old elements, and, as Judge Devitt noted, virtually every patent can be described as a “combination patent”. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871, 880 (Fed.Cir.1983). Further, the Court has itself recognized the patentability of combinations of old elements. United States v. Adams, 383 U.S. 39, 51-52, 86 S.Ct. 708, 714-715, 15 L.Ed.2d 572, 148 USPQ 479, 483 (1966) (“Despite the fact that each of the elements of the Adams battery was well known in the prior art, to combine them as did Adams required that a person reasonably skilled in the prior art must ignore” long-accepted factors.). There is neither a statutory distinction between “combination patents” and some other, never defined type of patent, nor a reason to treat the conditions for patentability differently with respect to “combination patents”. It but obfuscates the law to posit a non-statutory, judge-created classification labeled “combination patents”. Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 219 USPQ 8, 12 (Fed.Cir.1983). That the misstatement did not in this case lead to an erroneous application of the law, however, is indicated in part by the Memorandum statement that the “elements presumptively were combined in an inventive manner so as to render the combination patentable”. Though the record would have been more clear without the reference to “combination patents”, and “inventive manner”, it cannot be said that the appealed judgment was in this case so influenced thereby as to require reversal. Medtronic’s contention that the statutory presumption of validity was misapplied is based on the Memorandum statement that the “presumption of validity is weakened, if not completely destroyed, by proof of pertinent prior non-considered art”. The district court was there relying on language appearing in circuit opinions then serving as guidance to the district courts in the circuit. We have since explained that the presumption of validity is not weakened or destroyed where merely pertinent non-considered prior art is introduced, but that the offering party is more likely to carry the burden of" }, { "docid": "7190625", "title": "", "text": "Oust. & Pat.App. 1406, 138 USPQ 152, 154-55 (1963). The record does not indicate, however, that the obviousness conclusion was dictated by consideration of the sketches of hypothetical devices. On the contrary, Judge Kelleher was careful to note that it was the teachings of the references on which he rested his conclusion, not the hypothetical physical combination of elements in the sketches. Nothing of record would indicate that it would have been nonobvious to employ those teachings. That the teachings relied upon were repeated in a number of references further strengthens the conclusion of obviousness. If, therefore, error occurred in reception of the sketches, that error was harmless. Fed.R.Civ.P. 61. Kansas Jack attacks this language in the Memorandum of Decision: “[t]he combination of elements in the Hagerty device did not result in an effect greater than the sum of the several effects taken separately [and] [t]he subject matter of the Hagerty device did not produce any new, unusual or surprising results at the time of its invention,” saying that language expressed the standard employed in this case for determining patentability. No requirement for “an effect greater” or for “unusual or surprising results” is present in the statute, 35 U.S.C. § 103. The “effect greater” language is but a longer statement of a non-existent requirement for “synergism”, Chore-Time Equipment, Inc. v. Cumberland Corp., 713 F.2d 774 at 781 (Fed.Cir.1983). The “results” language would erect as a requirement for patentability, a fact determinable only after the time the invention was made, whereas the focus must be on that time as required by the statute. 35 U.S.C. § 103. Facts determinable at a later time may serve to evidence nonobviousness as of the time the invention was made. An invention that did achieve “an effect greater” or that produced “unusual or surprising results” could of course be held to have been nonobvious in light of those facts. Evidence of such achievements, like evidence of meeting a longfelt need, commercial success, overcoming disbelief, etc., may when present support a conclusion of nonobviousness. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 at 1540 (Fed.Cir.1983). Absence" }, { "docid": "23325897", "title": "", "text": "underlying fact findings are on review subject to the “clearly erroneous” standard, and findings suffering that infirmity may be so critical as to undermine the legal conclusion of obviousness, but that is not to say that the ultimate decision (conclusion) is measured by that standard. Presumption of Validity Sounding as though he bore a burden of proving validity, Fromson says “the presumption of validity (35 U.S.C. § 282) in this case has been strengthened ... by the fact that the PTO in the Reissue Proceeding embraced and considered all of the prior art and other evidence brought forth” at trial. Fromson’s position should be stated as “Advance’s burden of proving invalidity was made heavier” by that circumstance. The district court properly concluded that the presumption, like all legal presumptions, “is static — that is, it can neither be strengthened or [sic] destroyed.” The presumption of validity under § 282 is a procedural device, placing the burden of proving invalidity on the party asserting it. It is not substantive law. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530 at 1534, 218 USPQ 871 at 875 (Fed.Cir.1983). The Examiner’s decision, on an original or reissue application, is never binding on a court. It is, however, evidence the court must consider in determining whether the party asserting invalidity has met its statutory burden by clear and convincing evidence. See American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1359-60, 220 USPQ 763, 770 (Fed.Cir. 1984). We are satisfied that the district court did not disregard the presumption here. 35 U.S.C. § 103 Obviousness Fromson attacks the language employed by the district court as (1) disparaging the ’461 patent as a “combination patent”; (2) reflecting a “hindsight analysis”; (3) emphasizing an “each-element-is-old” factor; (4) focusing only on the difference from the prior art instead of viewing the invention as a whole; (5) denying deference to the PTO Reissue Proceedings; and (6) disregarding secondary considerations. Much of Fromson’s attack on the district court’s language fails to comprehend the appellate function. This court reviews judgments, not opinions. Stratoflex, Inc. v. Aeroquip Corp., 713" }, { "docid": "2850593", "title": "", "text": "to select from the random facts of that art only those which may be modified and then utilized to reconstruct appellants’ invention from such prior art. In re Shuman, 361 F.2d 1008, 1012, 150 USPQ 54, 57 (CCPA 1966). In Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed.Cir.1983), this court noted the conflict with the statute, 35 U.S.C. § 103, when the test applied is whether the claimed invention would have been obvious, not to one skilled in the art when the invention was made, but “to a judge or other layman after learning all about the invention.” (2) Misinterpretation of the Claimed Inventions The statute requires that the subject matter of the claimed inventions be considered “as a whole”. 35 U.S.C. § 103. In the present case, the district court interpreted the claims of the ’146 patent as though they were drawn to “multiple teeth”, those of the ’896 patent as though they were drawn to a “ledge”, and those of the ’538 patent as though they were drawn to a “hinge”. That was error. The court was apparently led into the instant error by defense counsel’s contention that each patent should be evaluated for what counsel called its “essence”. In so arguing, counsel misled the court in respect of the law when he told the court that if it upheld the validity of the patents it would be telling the entire industry: “You can’t have more than one parallel tooth.” (re the ’146 patent); “You can’t mount a pawl on a ledge.” (re the ’869 patent); “You can’t use a neck in there when you support your pawl.” (re the ’538 patent). Counsel knew, or should have known, of the falsity of the foregoing statements. Those statements mistate the law of validity and the law of infringement. As above indicated, validity is determined on the basis of the claimed subject matter as a whole, 35 U.S.C. § 103, not in respect of a single element. Similarly, infringement of a claimed combination requires the presence in an accused structure of each claimed element," }, { "docid": "9582525", "title": "", "text": "L.Ed.2d 107 (1984); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed.Cir.1983) (“Evidence of secondary considerations may often be the most probative and cogent evidence [of nonobviousness] in the record.”) The district court recognized, as had the Board, that the prior art contained no teaching, suggestion, or motivation to select from the two groups of references in the way that would produce the product described and claimed in the ’084 patent. However, the district court found such “motivation” in the machines of Messrs. Matsler and Jayne. The district court did not find that Mr. Matsler or Mr. Jayne knew or taught how to make the partially fried/frozen waffle-cut potatoes of the ’084 patent. However, the district court found that the Matsler and Jayne machines and their known waffle-cut product were prior art for the purpose of “derivation” under § 102(f), and that when combined with the other prior art they filled the gap in the § 103 obviousness determination. In this the district court erred, for even if the disclosure of these machines and their product spurred Lamb-Weston into action, inspiration or spur is not a “teaching, suggestion, or motivation” to combine selected references in a specific way to make a specifically detailed new product. To defeat patentability based on obviousness, the suggestion to make the new product having the claimed characteristics must come from the prior art, not from the hindsight knowledge of the invention that was made by Lamb-Weston. See Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143, 227 USPQ 543, 551 (Fed.Cir.1985): When prior art references require selective combination by the court to render obvious a subsequent invention, there must be some reason for the combination other than the hindsight gleaned from the invention itself. There must be “something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.” (citing ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577 & n. 14, 221 USPQ 929, 933 & n. 14 (Fed.Cir.1984), and Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick Co.," }, { "docid": "8683957", "title": "", "text": "advantages upon a patentee in the litigation context. The patentee’s first advantage is a procedural one — he is required to come forward with evidence of nonobviousness only after the challenger has successfully made his prima facie case demonstrating that the patent might be obvious. See, e.g., Pfizer, 480 F.3d at 1360 (“[0]nce a challenger has presented a prima facie case of invalidity, the patentee has the burden of going forward with rebuttal evidence.”); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983). This benefit relates to the burden of production, which initially lies with the challenger, then shifts to the patentee during the course of the litigation. The patentee’s second advantage is a substantive one — he prevails on the issue of validity unless the challenger proves to the decisionmaker by a clear and convincing standard that, after all of the evidence has been placed on the table for consideration, the claim is invalid. See, e.g., Pfizer, 480 F.3d at 1360; Stratoflex, 713 F.2d at 1534. This benefit relates to the burden of persuasion, and as we have often held (most recently in Cyclobenzaprine), this burden never shifts during the course of the litigation. In this case, the court found that Caraco’s prima facie evidence, if unrebut-ted, would be sufficient to establish that the repaglinide/metformin combination was obvious to try, and that a person of ordinary skill in the art would have reasonably expected the combination would yield success in the form of beneficial, and even synergistic, results. Novo Nordisk, 775 F.Supp.2d at 1006-07, 1010. Having so found, it was entirely appropriate for the court to next consider whether Novo’s countervailing secondary consideration evidence of unexpected synergy (i.e., its “attempt to prove unexpected results”) was sufficient to “overcome” Caraco’s prima facie case. The mere fact that the court conducted this analysis using terms such as “overcome” and “prima facie” does not necessarily imply that it shifted the burden of persuasion onto Novo. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 426, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) (“Like the District Court, finally, we conclude Te-leflex" }, { "docid": "12064974", "title": "", "text": "v. L.A. Gear Cal., Inc., 853 F.2d 1557, 1562, 7 USPQ2d 1548, 1552 (Fed,Cir.1988). The design cannot be dictated by functional requirements. Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 238, 231 USPQ 774, 777 (Fed.Cir.1986). Chrysler contends the fender design of the '019 patent is new, original, ornamental and nonobvious, and stands on the presumption of validity established by 35 U.S.C. § 282 (1988), and defendants’ concession that its fender is a copy of the ’019 design. Under § 282, a patent is presumed valid. This presumption of validity places the burden of persuasion as well as the burden of going forward on the party asserting invalidity. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed.Cir.1983). Defendants urged that the design at issue was not novel, original or ornamental and was therefore not eligible for patent protection. At this preliminary injunction stage, they also presented an affidavit from an expert witness that the design embodied in the ’019 patent would have been obvious to one skilled in the art. The district court was persuaded by the expert witness and found the ’019 patent [to be] an obvious combination of previous well-known design features, including the outward protruding lip over the wheel arch; thé scoop-out for the headlight bezel; the curved rear edge which comes to a point at the top ...; the inward line which runs the length of the ’019 fender; the backward sloped edge at the top of the ’019 fender; and' the horizontal creases which are located both front and rear. Chrysler Motors Corp. v. Auto Body Panels of Ohio, 719 F.Supp. at 624, 12 USPQ2d at 1495. Defendants argued further that the design is predominately dictated by functional considerations and is thus not eligible for design patent protection. The district court found the ’019 fender to have been “designed according to functional and performance considerations as opposed to aesthetic or ornamental considerations ...” and, therefore, that the validity of the ’019 patent was called into “serious question.” Id. The question of when the functionality of a design so permeates" }, { "docid": "14227926", "title": "", "text": "Inc., 2015 WL 996355, at *5, *12. IBS argues that, “[b]ecause the claims do not require quantitative cleavage, the Board erred by imposing such a requirement through the reasonable expectation of success analysis.” Appellant Br. 38. To the extent the Board’s decision is, based on thp “reasonable expectation of success” requirement, we agree. The reasonable expectation of success requirement refers to the likelihood of success in combining references to meet the limitations of the claimed-invention. “[F]ailure to consider the appropriate scope of the ... patent’s claimed invention in evaluating the reasonable expectation5 of success ... constitutes a legal error that [is]- reviewed] without deference.”. Allergan, 754 F.3d at 966 (emphasis added). Under the Board’s uncontested construction, “claim 1 does not require removal of the protecting group to allow subsequent nucleotide incorporation,” let alone quantitative removal. Intelligent Bio-Sys., Inc., 2015 WL 996355, at *4. Accordingly,' it is of no moment that • Zavgorodny’s protecting group would not be removed quantitatively in Tsien or Ju’s sequencing method— removal is simply not required by the claim of the '537 patent. The’Board seemed to believe that the “reasonable expectation of success” inquiry looked to whether one would reasonably expect the prior art references to operate as those references intended once combined. That is not the correct inquiry — one must have a motivation to combine accompanied by a” reasonable expectation of achieving what is claimed in the patent-at-issue. The Board’s reliance on the absence of a reasonable expectation of success was, thus, improper. See id. at *5-6 (citing KSR, 550 U.S. at 421, 127 S.Ct. 1727 to support the proposition “that a conclusion of obviousness requires a reasonable expectation of success”). Yet this court “sit[s] to review judgments, not opinions.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1540 (Fed.Cir.1983). And while the Board conflated two different legal concepts — reasonable expectation of success and motivation to combine — it nevertheless made sufficient factual findings to support its judgment that .-the claims at issue are not invalid. It was IBS’s burden , to demonstrate. both “that a skilled artisan would have been motivated to" }, { "docid": "23325900", "title": "", "text": "that the making of that combination would have been obvious when it was made. In a statement conceded by Advance to have been “perhaps unfortunate,” the district court characterized the ’461 patent as “a combination patent comprised exclusively of old elements.” That each “element” was old at the time the invention was made was undisputed in the PTO, at trial, and before this court. There is no basis in the law, however, for treating combinations of old elements differently in determining patentability. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d at 1540, 218 USPQ at 880. The critical inquiry is whether “there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.” Lindeman Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d at 1462, 221 USPQ at 488 (emphasis added). Where, as here, nothing of record plainly indicates that it would have been obvious to combine previously separate process steps into one process, it is legal error to conclude that a claim to that process is invalid under § 103. Advance asks us to hold that the district court intended to say the prior art as a whole, would have suggested the invention to one of ordinary skill in the art. Advance cites nothing in the court’s memorandum on which such a holding might rest, and the evidence of record convinces us that any such intent, if it ever existed, would have been unfounded. Secondary Considerations This court has stated that evidence of secondary considerations must always when present be considered in the process of determining obviousness, and that it “may often be the most probative and cogent evidence in the record. It may often establish that an invention appearing to have been obvious was not.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d at 1538, 218 USPQ at 879. The district court’s memorandum opinion contains the statement that: evidence of secondary considerations is not conclusive on the issue of obviousness, Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 740 (Fed.Cir.1984), and if this Court determines from" }, { "docid": "22776890", "title": "", "text": "patentability— and reasoning that were the law otherwise a claimed combination of old elements would “merely [withdraw] from the public’s use that which was known before” — is wholly erroneous. While the existence of a new and unexpected result or function or a so-called “synergistic” effect may support a holding of nonobviousness, e.g., Clark Equipment Co. v. Keller, 570 F.2d 778, 789, 197 USPQ 209, 217 (8th Cir.1978) (“in the patent law context, ‘synergism’ has no talismanic power; ‘synergism’ is merely one indication of non-obviousness”), our predecessor courts have considered and rejected the notion that a new result or function or synergism is a requirement of patentability. It was emphasized that “under this standard * * * one would focus solely on the product created rather than on the obviousness or nonobviousness of its creation, as required under § 103.” General Motors Corp. v. U.S. International Trade Commission, 687 F.2d 476, 482-83, 215 USPQ 484, 489 (CCPA 1982). See In re Sponnoble, 405 F.2d 578, 585, 56 CCPA 823,160 USPQ 237, 243 (1969) (“A patentable invention * * * may result even if the inventor has, in effect, merely combined features, old in the art, for their known purpose, without producing anything beyond the results inherent in their use.”); Bowser, Inc. v. United States, 388 F.2d 346, 349-350, 181 Ct.Cl. 834, 56 USPQ 406, 409 (1967). We agree with the Seventh Circuit’s analysis of the “fundamental flaws” in the theory that synergism is essential to patentability. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 967-72, 200 USPQ 769, 774-79 (7th Cir. 1979). See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed. Cir.1983). We also agree with AmHoist that the district court should have submitted to the jury the factual inquiries underlying a § 103 determination in the form of special interrogatories. Fed.R.Civ.P. 49. While the form of jury verdict is normally a matter of discretion with the trial court, one court has noted that the “failure to utilize this method in a patent case places a heavy burden of convincing the reviewing court that" }, { "docid": "3614014", "title": "", "text": "§ 282, and in applying an improper test for determining the obviousness/nonobviousness issue. Though the Memorandum, as discussed below, contains language and phrases unsupported by the statute, Title 35 U.S.C., that alone does not require reversal where, as here, the decisional approach has not been shown to have been influenced or controlled thereby, and the result of the trial has not been shown, on the entire record, to have been reached on the basis of either clearly erroneous findings or on an actual misapplication of the law. (1) The Memorandum and Order Medtronic vigorously argues error in the Memorandum statement that “[c]ourts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements....” We cannot construe that statement, taken from the opinion in Sakraida v. Ag Pro, Inc., 425 U.S. 273, 281, 96 S.Ct. 1532, 1537, 47 L.Ed.2d 784 (1976) and Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950) as a rule of law applicable broadly to patent cases because virtually every claimed invention is a combination of old elements, and, as Judge Devitt noted, virtually every patent can be described as a “combination patent”. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871, 880 (Fed.Cir.1983). Further, the Court has itself recognized the patentability of combinations of old elements. United States v. Adams, 383 U.S. 39, 51-52, 86 S.Ct. 708, 714-715, 15 L.Ed.2d 572, 148 USPQ 479, 483 (1966) (“Despite the fact that each of the elements of the Adams battery was well known in the prior art, to combine them as did Adams required that a person reasonably skilled in the prior art must ignore” long-accepted factors.). There is neither a statutory distinction between “combination patents” and some other, never defined type of patent, nor a reason to treat the conditions for patentability differently with respect to “combination patents”. It but obfuscates the law to posit a non-statutory, judge-created classification labeled “combination patents”. Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573," }, { "docid": "602173", "title": "", "text": "34 was the combination of menthol and WS-23. Although Parrish teaches substituting WS-23 for menthol, rather than combining the two, the court found that Parrish would have made it obvious to substitute WS-23 for WS-3 in the combination of menthol and WS-3 that was disclosed in Luo. The court also ruled that the evidence of secondary considerations proffered by Wrigley was not sufficient to overcome the strong showing of obviousness and establish that claim 34 was “an invention appearing to have been obvious in light of the prior art [that] was not.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed.Cir.1983). I On appeal, Wrigley argues that Shahidi does not anticipate claim 34 for two reasons. First, Wrigley argues that while Shahidi discloses all the claim limitations found in claim 34, it does not disclose them in the combination recited in that claim. Second, and relatedly, Wrigley ar gues that Shahidi would not have enabled a person of ordinary skill in the art to derive the combination recited in claim 34 without undue experimentation. For a prior art reference to anticipate a claim, it must disclose all of the limitations of the claim, “arranged or combined in the same way as in the claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed.Cir.2008). For example, in Net MoneyIN, this court held that an “Internet payment system” was not anticipated by a prior art reference that disclosed all the components of the invention, because the reference disclosed two separate payment protocols, each of which contained only a subset of the components claimed in the patent at issue. Id. at 1371. Therefore, the reference did not “prove prior invention of the thing claimed.” Id. In this ease, by contrast, Shahidi envisions using WS-23 and menthol in a single product. While Shahidi discloses a number of different combinations of cooling and flavoring elements, one of them is the combination of menthol, which Shahidi identifies as one of the “most suitable” flavoring agents, with WS-23, which Shahidi identifies along with WS-3 as among a group of three “particularly preferred cooling agents.”" } ]

[ { "docid": "22339535", "title": "", "text": "Shearson, Hammill & Co., 448 F.2d 442, 444 (2d Cir. 1971)). See 5 Wright & Miller, supra, at 403-404 (“It is the pleading of these matters with precision that serves the rule’s purpose by apprising the defendant of the claim against him and of the acts relied upon as constituting the fraud charged.”) Secondly, the specificity requirement grows out of “the desire to protect defendants from the harm that comes to their reputations or to their goodwill when they are charged with serious wrongdoing . . . .” Segal v. Gordon, 467 F.2d 602, 607 (2d Cir. 1972). In the context of securities litigation Rule 9(b) serves an additional important purpose. It operates to diminish the possibility that “ ‘a plaintiff with a largely groundless claim [will be able] to simply take up the time of a number of other people [by extensive discovery], with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence . . . Denny v. Barber, supra, 576 F.2d at 470, (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975)). In Segal v. Gordon, supra, the court held: “Mere conclusory allegations to the effect that defendant’s conduct was fraudulent or in violation of Rule 10b-5 are insufficient”; Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2d Cir. 1971) . . . “[I]t is now quite clear in this Circuit that allegations with respect to 10b-5 violations will not pass scrutiny if they do not allege with some specificity the statements allegedly constituting the fraud.” Matheson v. White Weld & Co., 53 F.R.D. 450, 452 (S.D.N.Y.1971). 467 F.2d at 607. Similarly, in Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 378 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975), the court indicated that a complaint which merely alleged that the defendants engaged “in a course of business which operated as a fraud and deceit on the purchasers and holders" } ]

[ { "docid": "1384917", "title": "", "text": "complaint does almost nothing more than parrot the statute verbatim. For example, paragraph “12” alleges that “at all the times of said transfers .... OPM was one or more of the following: (a) insolvent; (b) had an unreasonably small capital; or (c) intended or believed that it would incur debts beyond its ability to pay as they mature.” These are elements set forth in Section 548(a)(2)(A), (B); these words do not explain and do not specify any facts. This smacks of multiple choice or menu pleading. “This practice [of repeating the statute] can have serious consequences in ordinary situations as fraud should normally be pleaded with particularity.” In re McGuff, 3 B.R. at 70. A complaint that merely repeats the wording of the statute and includes no facts in support of its allegations will be met with disfavor. Moreover, plaintiff has asserted all of his fraud allegations on information and belief. The case law generally holds that allegations of fraud based solely on information and belief usually do not satisfy the degree of particularity required by Rule 9(b). See, e.g., Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972); Weinberger v. Kendrick, 432 F.Supp. 316, 321 (S.D.N.Y.1977); Odette v. Shearson, Hammill & Go., 394 F.Supp. 946, 959-60 (S.D.N.Y.1975); Rich v. Touche Ross and Co., 68 F.R.D. 243 (S.D.N.Y.1975). The particularity requirement may only be satisfied in a pleading on information and belief where the allegations are accompanied by a statement of the facts upon which the belief is founded. See Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); McFarland v. Memorex Corp., 493 F.Supp. 631, 639 (S.D.N.Y.1980); Stromfield v. Great Atlantic and Pacific Tea Co., 484 F.Supp. 1264, 1270 (S.D.N.Y.1980); Ross v. Warner, 480 F.Supp. 268, 271 (S.D.N.Y.1979). Accordingly, that fraud is pleaded substantially on information and belief here is another factor militating in favor of requiring the Trustee to amend his pleading to comport with the particularity requirements of Rule 9(b). Rule 15(a) of the Federal Rules grants leave to amend “and leave shall" }, { "docid": "18636367", "title": "", "text": "them to prepare defenses to charges of misconduct. Felton v. Walston and Co., 508 F.2d 577, 581 (2d Cir. 1974); Rich v. Touche Ross & Co., 68 F.R.D. 243, 245 (S.D.N.Y.1975). The requirement “inhibit[s] the filing of a complaint as a pretext for discovery of unknown wrongs.” Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1087 (S.D.N.Y.1977); Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972). The specificity requirement also serves to discourage lightly made allegations of conduct involving moral turpitude, which is particularly important to “professionals whose reputations . . . are most sensitive to slander.” Rich v. Touche Ross & Co., supra, 68 F.R.D. at 245. The entire Second Amended Complaint is alleged on “information and belief.” Only those matters peculiarly within the knowledge of the adverse party may be pleaded in this manner, and then, in order to satisfy Rule 9(b), the allegations must be accompanied by a statement of the facts on which plaintiffs’ belief is founded. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Segal v. Gordon, supra; Morgan v. Prudential Group, Inc., 81 F.R.D. 418, 423 (S.D.N.Y.1978). The Section 10(b) Claim A successful section 10(b) action requires, inter alia, a showing that defendants had intended to deceive, manipulate or defraud. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). To meet the particularity requirement, a complaint must state facts giving rise to the inference of fraudulent conduct by a particular defendant. Jacobson v. Peat, Marwick, Mitchell & Co., 445 F.Supp. 518, 522 (S.D.N.Y.1977). Assuming arguendo that plaintiffs have adequately identified improper transactions engaged in by GT&E, they have failed to identify adequately the misleading documents involved or state facts sufficient to give rise to an inference of fraud by the corporation’s accountant. At a minimum, a plaintiff alleging securities fraud should be able to identify the misleading documents on which he has relied to his detriment. Plaintiffs cannot logically claim inability to do this without leaving the impression that they are using" }, { "docid": "11438990", "title": "", "text": "releases were materially false and misleading in their failure to disclose W&S’ allegedly ongoing negotiations with Vorwerk; and that the whole episode was somehow contrived by Raneo and W&S to help W&S sell its Raneo stock to Vorwerk at a considerable profit. Finding that the press releases were truthful and that the bald allegation that Raneo did not seriously intend to evaluate W&S’ proposal did not allege fraud with the “particularity” required by F.R.Civ.P. 9(b), the judge dismissed the amended complaint— although giving plaintiffs, as indicated, another chance to replead, which they rejected. No useful purpose would be served in retracing this court’s efforts to effect the necessary reconciliation between the requirement of F.R.Civ.P. 9(b) that “In all averments of fraud . . . the circumstances constituting fraud ... shall be stated with particularity” and the provision in F.R. Civ.P. 8(a)(2) that a complaint need contain only “a short and plain statement of the claim showing that the pleader is entitled to relief,” with the consequence that evidence need not be pleaded. It suffices to cite such well known cases as Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2 Cir. 1971); Segal v. Gordon, 467 F.2d 602, 607 (2 Cir. 1972); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 378-80 (2 Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); and Denny v. Barber, 576 F.2d 465 (2 Cir. 1978). It doubtless follows that if plaintiffs had merely alleged generally that Raneo said it would carefully evaluate W&S’ proposal when it had no intention of doing so, an allegation that could be made in virtually every rejected tender offer case, the complaint would have been properly dismissed. But here plaintiffs alleged a number of particulars from which one might reasonably infer that Ranco’s July 12 press release was materially false and misleading. For example, Raneo had already resisted W&S’ initial overtures in its September 5, 1978 Ohio suit against W&S. Raneo and W&S had also gone through 10 months of fruitless takeover negotiations. Also, Raneo had encouraged Vorwerk to take a position" }, { "docid": "16293078", "title": "", "text": "“promise to answer for the debt, default or miscarriage of another.” There is no allegation that Moshe promised DDIL’s creditors that he would make good on DDIL’s debts, which would be within section 5-701(a)(2). The only allegation is that Moshe agreed to reimburse Gordon to the extent that Gordon answered for the debts of DDIL. See 2 A. Corbin, Contracts § 349, at 220. Besides alleging breach of contract, the second and fourth causes of action of the third-party complaint also allege fraud. Therefore, the circumstances constituting the alleged fraud must be pleaded with particularity. Fed.R.Civ.P. 9(b). The courts of this Circuit have clearly established a pleader’s obligations under Rule 9(b). See Ross v. A.H. Robins Co., 607 F.2d 545 (2d Cir. 1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Denny v. Barber, 576 F.2d 465 (2d Cir. 1978); Felton v. Walston & Co., 508 F.2d 577 (2d Cir. 1974); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Segal v. Gordon, 467 F.2d 602 (2d Cir. 1972); Shemtob v. Shearson, Hammill & Co., 448 F.2d 442 (2d Cir. 1971); Sigety v. Buxton’s Country Shops, Inc., 80 Civ. 2693 (S.D.N.Y. Oct. 3, 1980); Todd v. Oppenheimer & Co., 78 F.R.D. 415 (S.D.N.Y. 1978); Rich v. Touche Ross & Co., 68 F.R.D. 243 (S.D.N.Y. 1975). In essence, a plaintiff must specify: 1) precisely what statements were made in what documents or oral representations or what omissions were made, and 2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) the same, 3) the content of such statements and the manner in which they misled the plaintiff, and 4) what the defendants “obtained as a consequence of the fraud.” Todd v. Oppenheimer & Co., supra, 78 F.R.D. at 420-21 (quoting Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1088 (S.D.N.Y. 1977), aff'd mem., 636 F.2d 1201 (2d Cir. 1980)). Moreover, an allegation on “information and belief” is sufficient under Rule" }, { "docid": "16293079", "title": "", "text": "L.Ed.2d 467 (1975); Segal v. Gordon, 467 F.2d 602 (2d Cir. 1972); Shemtob v. Shearson, Hammill & Co., 448 F.2d 442 (2d Cir. 1971); Sigety v. Buxton’s Country Shops, Inc., 80 Civ. 2693 (S.D.N.Y. Oct. 3, 1980); Todd v. Oppenheimer & Co., 78 F.R.D. 415 (S.D.N.Y. 1978); Rich v. Touche Ross & Co., 68 F.R.D. 243 (S.D.N.Y. 1975). In essence, a plaintiff must specify: 1) precisely what statements were made in what documents or oral representations or what omissions were made, and 2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) the same, 3) the content of such statements and the manner in which they misled the plaintiff, and 4) what the defendants “obtained as a consequence of the fraud.” Todd v. Oppenheimer & Co., supra, 78 F.R.D. at 420-21 (quoting Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1088 (S.D.N.Y. 1977), aff'd mem., 636 F.2d 1201 (2d Cir. 1980)). Moreover, an allegation on “information and belief” is sufficient under Rule 9(b) only if it is “accompanied by a statement of the facts upon which the belief is founded.” Schlick v. Penn-Dixie Cement Corp., supra, 507 F.2d at 379; see Heller v. Thomson & McKinnon Auchincloss Kohlmeyer, Inc., [1976-1977] Fed.Sec. L.Rep. (CCH) 195,811, at 90,929-30 (S.D.N.Y. 1976). The Court finds that the second and fourth causes of action fall just short of the stringent requirements of Rule 9(b). In the second cause of action, paragraph 16 states: “On information and belief, the said representation and promise of Moshe Dankner were false and fraudulent since Moshe Dankner knew at the time he made the representation and promise that he had no intention of honoring them.” The Gold-mans fail to allege the time and place of the allegedly fraudulent statements, and, in addition, do not accompany the allegation in paragraph 16 with a statement of the facts upon which they base their belief that Moshe knew he would not honor his promise. The fourth cause of action, read as a whole, is substantially more particularized but still fails" }, { "docid": "1384918", "title": "", "text": "by Rule 9(b). See, e.g., Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972); Weinberger v. Kendrick, 432 F.Supp. 316, 321 (S.D.N.Y.1977); Odette v. Shearson, Hammill & Go., 394 F.Supp. 946, 959-60 (S.D.N.Y.1975); Rich v. Touche Ross and Co., 68 F.R.D. 243 (S.D.N.Y.1975). The particularity requirement may only be satisfied in a pleading on information and belief where the allegations are accompanied by a statement of the facts upon which the belief is founded. See Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); McFarland v. Memorex Corp., 493 F.Supp. 631, 639 (S.D.N.Y.1980); Stromfield v. Great Atlantic and Pacific Tea Co., 484 F.Supp. 1264, 1270 (S.D.N.Y.1980); Ross v. Warner, 480 F.Supp. 268, 271 (S.D.N.Y.1979). Accordingly, that fraud is pleaded substantially on information and belief here is another factor militating in favor of requiring the Trustee to amend his pleading to comport with the particularity requirements of Rule 9(b). Rule 15(a) of the Federal Rules grants leave to amend “and leave shall be freely given when justice so requires.” Leave to amend is proper “where the moving party has not been guilty of bad faith and is not acting for the purpose of delay, the opposing party will not be unduly prejudiced, and the trial of issues will not be unduly delayed.” 3 Moore’s Federal Practice § 15.08[2] (2d ed. 1983) In the instant case, plaintiff will be given the opportunity to amend his complaint to cure the deficiencies described above. In so doing, he must reassess each of his contentions in an effort to satisfy the requisite elements of the sections relied upon with the particularity insisted upon by the Federal Rules. Conclusion Based upon the foregoing, the Trustee will be granted leave to amend his complaint in order to replead the fraudulent transfer alleged under Code Sections 544(b) and 550 with particularity. However, the allegations of fraudulent transfer under Code Section 548 must be dismissed with prejudice pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules. Leave to amend the complaint within 20 days" }, { "docid": "14266307", "title": "", "text": "and that Fed.R.Civ.P. 9(b) therefore requires their dismissal. Plaintiffs argue that the allegations of fraud made in Counts V and VI are more than particular enough to satisfy Rule 9(b). Rule 9(b) provides that “[i]n all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity.” This means that conclusory allegations that defendants’ conduct was fraudulent are insufficient. Instead, the complaint must describe the conduct that constitutes the fraud with some specificity. See, e.g., Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir.1982). The particularity requirement of Rule 9(b) serves three purposes. First, it ensures that fraud allegations are concrete enough to give defendants fair notice of the grounds of the complaint, so that they can prepare a defense. Second, it protects defendants’ reputations or goodwill from the harm that comes from being accused of serious wrongdoing. Third, it inhibits the filing of complaints that are a pretext for the discovery of unknown wrongs, or that are groundless claims designed to coerce a settlement out of defendants who wish to avoid the time and expense of defending themselves. See, e.g., Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Benoay v. Decker, 517 F.Supp. 490, 492 (E.D.Mich.1981), aff'd mem., 735 F.2d 1363 (6th Cir.1984). The particularity requirement of Rule 9(b), however, must be read in conjunction with Fed.R.Civ.P. 8(a)(2), which requires a complaint to consist of a short and plain statement of the claim. See, e.g., Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1976); Jordan v. Global Natural Resources, Inc., 564 F.Supp. 59, 68 (S.D.Ohio 1983); Denny v. Barber, 73 F.R.D. 6, 8-9 (S.D.N.Y.1977), aff'd, 579 F.2d 465 (2d Cir. 1978). In addition, Rule 9(b) does not require plaintiffs to plead detailed evidentiary matters. Ross v. A.H. Robins Co., supra, at 557 n. 20; Schlick v. Penn-Dixie, supra. Defendants argue that the complaint in this case fails to satisfy Rule 9(b) because it is based on" }, { "docid": "14266308", "title": "", "text": "avoid the time and expense of defending themselves. See, e.g., Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Benoay v. Decker, 517 F.Supp. 490, 492 (E.D.Mich.1981), aff'd mem., 735 F.2d 1363 (6th Cir.1984). The particularity requirement of Rule 9(b), however, must be read in conjunction with Fed.R.Civ.P. 8(a)(2), which requires a complaint to consist of a short and plain statement of the claim. See, e.g., Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1976); Jordan v. Global Natural Resources, Inc., 564 F.Supp. 59, 68 (S.D.Ohio 1983); Denny v. Barber, 73 F.R.D. 6, 8-9 (S.D.N.Y.1977), aff'd, 579 F.2d 465 (2d Cir. 1978). In addition, Rule 9(b) does not require plaintiffs to plead detailed evidentiary matters. Ross v. A.H. Robins Co., supra, at 557 n. 20; Schlick v. Penn-Dixie, supra. Defendants argue that the complaint in this case fails to satisfy Rule 9(b) because it is based on information and belief. The opening words of the complaint confirm this by stating the “Plaintiffs ... allege for their [complaint], upon information and belief, except with respect to paragraphs 5-12, which are based upon personal knowledge of the individual plaintiffs to whom the allegations refer.” As a general rule, allegations based on information and belief fail to satisfy the particularity requirement of Rule 9(b). See, e.g., D & G Enter. v. Continental Illinois Nat'l Bank, 574 F.Supp. 263, 267 (N.D.Ill.1983). However, an exception to this rule exists for matters that are peculiarly within the knowledge of the opposing party. As the Second Circuit has stated: [T]he rule relating to information and belief may be relaxed as to matters peculiarly within the opposing party’s knowl edge, as where the complaining stockholders in a derivative suit have little information about the manner in which the corporation’s internal affairs are conducted and hence are rarely able to provide details as to the alleged fraud. Schlick v. Penn-Dixie, supra (citing 5 C. Wright & A. Miller, Federal Practice and" }, { "docid": "775030", "title": "", "text": "S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974))). . Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted); see Goldman v. Belden, 754 F.2d 1059 at 1065 (2d Cir.1985). . Goldman v. Belden, 754 F.2d 1059 at 1069-70 (2d Cir.1985). . Rule 9(b) provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.\" Fed.R.Civ.P. 9(b). . Goldman v. Belden, 754 F.2d 1059 at 1070 (2d Cir.1985). . Id. at 1070; Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 115 (2d Cir.1982); Denny v. Barber, 576 F.2d 465, 469 (2d Cir.1978); Felton v. Walston & Co., Inc., 508 F.2d 577, 580 (2d Cir.1974); Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972). . A.T. Brod & Co. v. Perlow, 375 F.2d 393, 398 (2d Cir.1967). . See Goldman v. Belden, 754 F.2d 1059 at 1070 (2d Cir.1985); Felton v. Walston & Co., Inc., 508 F.2d 577, 581 (2d Cir.1974) (“It may well be that plaintiffs have no claim against [defendant] but the proper manner in which to determine whether a claim exists is to require an answer, and, if necessary, a trial of those issues\"); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974) (“a complainant is not required to plead evidence”), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). . See Billard v. Rockwell Int'l Corp., 683 F.2d 51, 57 (2d Cir.1982). . See Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974); cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). . See Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 116 (2d Cir.1982) (\"Rule 9(b) will have failed in its purpose if conclusory generalizations ... permit a plaintiff to set off on a long and expensive discovery process in the hope of uncovering some sort of wrongdoing or of obtaining a substantial settlement”); Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972); Crystal v. Foy, 562 F.Supp. 422," }, { "docid": "22409582", "title": "", "text": "or may not be consistent and each of which necessarily rests on its particular facts. We follow the rule laid down by our own decisions, notably Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2 Cir. 1971), Segal v. Gordon, 467 F.2d 602, 607 (2 Cir. 1972), Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 378-80 (2 Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1965), and Felton v. Walston and Co., 508 F.2d 577 (2 Cir. 1974). Recognizing the difficulties encountered by a small stockholder in framing a Rule 10b-5 complaint against a large corporation which has not been the subject of a publicized official investigation and the consequent need, noted in Schlick, for relaxing the requirement that allegations of fraud should be based on something more than information and belief, there still must be more than vague allegations that, as shown by subsequent developments, the corporation’s true financial picture was not so bright in some respects as its annual reports had painted and that the defendants knew, or were reckless in failing to know, this. The admission in counsel’s Rule 9(g) statement that he had simply nothing with which to counter Esposito’s affidavit in the absence of discovery is significant. The Supreme Court has admonished that to the extent that such discovery “permits a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence, it is a social cost rather than a benefit.” Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 741, 95 S.Ct. at 1928. Plaintiff’s counsel also invites us to consider the proposed second amended complaint. This differs primarily in making clear which allegations refer to the period prior to Denny’s 15 share purchase on De eember 12,1974, and omitting allegations of transactions which clearly postdated that transaction. Although the second amended complaint was not filed until after the district" }, { "docid": "16293077", "title": "", "text": "that liability, independently of the question whether a third person makes default or not.” Id. at 726, 251 N.Y.S. at 572 (quoting Har-burg India Rubber Comb Co. v. Martin, [1902] 1 K.B. 778, 785). The rule was recently reiterated by Judge Munson in In re Naramore, 3 B.R. 709, 714 (Bkrcty. N.D. N.Y. 1980). See 2 A. Corbin, Contracts §§ 385-86. The facts of the instant litigation place it squarely within the rule stated above. The Goldmans’ promise to guarantee DDIL’s indebtedness is within the statute of frauds, see Vola v. C.P. Whitney Co., 105 N.Y.S.2d 58 (1st Dep’t 1951); Union Properties, Inc. v. Bogdanoff, 250 A.D. 282, 294 N.Y.S. 151 (1st Dep’t 1937), but Moshe’s alleged promise to indemnify them for becoming guarantors is not. Thus, as to the second cause of action, the Court rejects the third-party defendants’ argument grounded on the statute of frauds. As to the fourth cause of action, Moshe’s alleged promise to reimburse Gordon for the latter’s paying the debts of the corporation is even more clearly not a “promise to answer for the debt, default or miscarriage of another.” There is no allegation that Moshe promised DDIL’s creditors that he would make good on DDIL’s debts, which would be within section 5-701(a)(2). The only allegation is that Moshe agreed to reimburse Gordon to the extent that Gordon answered for the debts of DDIL. See 2 A. Corbin, Contracts § 349, at 220. Besides alleging breach of contract, the second and fourth causes of action of the third-party complaint also allege fraud. Therefore, the circumstances constituting the alleged fraud must be pleaded with particularity. Fed.R.Civ.P. 9(b). The courts of this Circuit have clearly established a pleader’s obligations under Rule 9(b). See Ross v. A.H. Robins Co., 607 F.2d 545 (2d Cir. 1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Denny v. Barber, 576 F.2d 465 (2d Cir. 1978); Felton v. Walston & Co., 508 F.2d 577 (2d Cir. 1974); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44" }, { "docid": "10535879", "title": "", "text": "claims; and (4) minimize the number of strike suits. Beres v. Thomson McKinnon, No. 85-6674 (S.D.N.Y. September 1, 1989) (Kram, J.), slip op. at 16 (WESTLAW, Allfeds library, Dist file, 1989 WL 105967 (citing Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Decker v. Massey Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir.1982) (other citations omitted.)) Generally, allegations of fraud based only upon “information and belief” violate the rule that 9(b) pleadings be pleaded with particularity. Id. (citing Luce v. Edelstein, 802 F.2d 49, 54 n. 1 (2d Cir.1986); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974, cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975)). If the allegation involves scienter, or “matters peculiarly within the adverse parties’ knowledge, the allegations must then be accompanied by a statement of facts upon which the belief is founded.” Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972). Allegations based on information and belief which fail to specify the time, place, speaker and content of the alleged misrepresentations lack the “particulars” required by Rule 9(b). Luce, supra, 802 F.2d at 54; see Denny v. Barber, 576 F.2d 465, 469 (2d Cir.1978); Zerman v. Ball, 735 F.2d 15, 22 (2d Cir.1984); Segal, supra, 467 F.2d at 608. Failure to connect allegations of fraudulent representation to particular defendants and to allege specific facts to support the claims of fraud is sufficient grounds for dismissal. Luce, supra, 802 F.2d at 54. To satisfy the Rule 9(b) requirements in the Second Circuit, plaintiffs must specify: 1) precisely what statements were made in what documents or oral misrepresentations or what omissions were.made, 2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) the same, 3) the context of such statements and the manner in which they misled the plaintiffs, and 4) what defendants obtained as a consequence of the fraud. Beres, supra, slip op. at 18 (citing Barr v. McGraw-Hill, Inc., [Current Transfer Binder]" }, { "docid": "2656905", "title": "", "text": "for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. . The other defendants are Reade itself and the officers and directors of Reade. . Throughout this opinion, paragraph numbers in parentheses refer to the text of the complaint. . One purpose of this requirement is of course to protect accountants and other professionals from a barrage of baseless complaints alleging fraud. See Felton v. Walston and Co., 508 F.2d 577, 581 (2d Cir. 1974); Segal v. Gordon, 467 F.2d 602, 607 (2d Cir. 1972); 5 C. Wright & A. Miller, Federal Practice & Procedure § 1296 (1969). . Segal v. Gordon, 467 F.2d at 602; Rich v. Touche Ross & Co., 68 F.R.D. 243, 246 (S.D.N.Y.1975); Matheson v. White Weld & Co., 53 F.R.D. 450, 452 (S.D.N.Y.1971). . Felton v. Walston and Co., 508 F.2d at 581; Rich v. Touche Ross & Co., 68 F.R.D. at 246; Matheson v. White Weld & Co., 53 F.R.D. at 452. . See Shemtob v. Shearson Hammili & Co., 448 F.2d 442, 445 (2d Cir. 1971); O’Neill v. Maytag, 339 F.2d 764, 768 (2d Cir. 1964). The complaint, therefore, may not rely upon blanket references to acts or omissions by all of the “defendants,” for each defendant named in the complaint is entitled to be apprised of the circumstances surrounding the fraudulent conduct with which he individually stands charged. See e. g., Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1088 (S.D.N.Y.1977); SEC v. Republic National Insurance Co., 378 F.Supp. 430, 439 (S.D.N.Y.1974); Jones v. Stirling, [1974-75 Transfer Binder] Fed.Sec.L.Rep. (CCH) t 94,927 at 97,208 (S.D. N.Y.1974). . Segal v. Gordon, 467 F.2d at 607; 2A Moore’s Federal Practice t 9.03 (2d ed. 1975). . Segal v. Gordon, 467 F.2d at 607; Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Rich v. Touche Ross & Co., 68 F.R.D. at 245. . Curiously, the complaint also alleges that the Form 10-K for calendar year 1975 materially overstated Reade’s receivables even though plaintiff" }, { "docid": "15389685", "title": "", "text": "designed to find wrongs rather than to redress them, and guarantees that “defendants are given notice of the exact nature of the fraud claimed, sufficient to permit responsive measures.” Todd v. Oppenheimer & Co., 78 F.R.D. 415, 419 (S.D.N.Y.1978); see Segal v. Gordon, 467 F.2d 602, 607-08 (2d Cir. 1972); Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1087 (S.D.N.Y.1977); Rich v. Touche Ross & Co., 68 F.R.D. 243, 245 (S.D.N.Y.1975). The defendants argue that Morgan’s complaint fails to satisfy the requirements of Rule 9(b) in three ways: first, it does not specify the documents alleged to contain misrepresentations and fails to identify the statements alleged to be false; second, it does not state the basis for Morgan’s belief regarding allegations pleaded on “information and belief”; and third, it does not detail the nature or scope of the assistance rendered the Prudential defendants by the aider and abettor defendants in the perpetration of the alleged fraud. A. Identification of False Statements The complaint describes in some detail the substance of the statements supposedly contained in the “selling documents,” and the way in which those statements were false or misleading. In this regard, the complaint is adequate. However, neither the actual statements nor' the documents purportedly containing them are identified, and “[t]he law does not excuse plaintiff’s failure to identify the offending publications.” Denny v. Barber, 73 F.R.D. 6, 9 (S.D.N.Y.1976), aff’d, 576 F.2d 465 (2d Cir. 1978); accord, Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1087 (S.D.N.Y.1977); Rich v. Touche Ross & Co., 68 F.R.D. 243, 246 (S.D.N.Y.1975); see Felton v. Walston & Co., 508 F.2d 577, 581 (2d Cir. 1974). This, however, is the least of the complaint’s deficiencies. B. Allegations Made on “Information and Belief’’ Morgan’s entire complaint is alleged “on information and belief.” The law permits a plaintiff charging fraud to plead in this manner only those matters peculiarly within the adverse party’s knowledge. Segal v. Gordon, 467 F.2d 602, 608 (2d Cir. 1972); Armstrong v. McAlpin, [Current] Fed.Sec.L.Rep. (CCH) ¶ 96,323 at 93,078 (S.D.N.Y. January 26,1978). It would be a wasteful exercise to detail here" }, { "docid": "23230550", "title": "", "text": "or in violation of Rule 10b-5 are insufficient.” Shemtob v. Shearson, Hammill & Co., Inc., 448 F.2d 442, 444 (2d Cir. 1971); also quoted in Felton v. Walston & Co., Inc., 508 F.2d 577, 580 (2d Cir. 1974); Segal v. Gordon, 467 F.2d 602, 607 (2d Cir. 1972) ; Goldberg v. Shapiro, CCH Fed.Sec.L. Rep. ¶ 94,813 at 96,717 (S.D.N.Y.1974). There are at least three well-recognized purposes for Rule 9(b)’s specificity requirement. The first is to inhibit the filing of a complaint as a pretext for discovery of unknown wrongs. Segal v. Gordon, supra at 607-08; Lewis v. Varnes, 368 F.Supp. 45, 47 (S.D.N.Y.), aff'd, 505 F.2d 785 (2d Cir. 1974). A complaint alleging fraud “should serve to redress a wrong, not to find one.” Segal v. Gordon, supra at 608. The second aim is to protect potential defendants from the harm that comes to their reputations when they are charged with the commission of acts involving moral turpitude. Segal v. Gordon, supra at 607; Rich v. Touche Ross & Co., 68 F.R.D. 243, 245 (S.D.N.Y.1975). Finally, Rule 9(b) serves to ensure that allegations of fraud are concrete and particularized enough to give notice to the defendants of what conduct is complained of to enable the defendants to prepare a defense to such a claim of misconduct. Rich v. Touche Ross & Co., supra at 245; Lewis v. Varnes, supra at 47; see Felton v. Walston & Co., supra. Plaintiff’s complaint, as are the complaints in the other three actions, is based upon “information and belief.” The allegations in these complaints violate the general rule that “Rule 9(b) pleadings cannot be based on information and belief.” Segal v. Gordon, supra at 608, citing 2A J. Moore’s, Federal Practice ¶ 9.03. “While the rule is relaxed as to matters peculiarly within the adverse parties' knowledge, the allegations must then be accompanied by a statement of facts upon which the belief is founded.” Id.; accord, Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Rich v. Touche" }, { "docid": "15389686", "title": "", "text": "the “selling documents,” and the way in which those statements were false or misleading. In this regard, the complaint is adequate. However, neither the actual statements nor' the documents purportedly containing them are identified, and “[t]he law does not excuse plaintiff’s failure to identify the offending publications.” Denny v. Barber, 73 F.R.D. 6, 9 (S.D.N.Y.1976), aff’d, 576 F.2d 465 (2d Cir. 1978); accord, Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080, 1087 (S.D.N.Y.1977); Rich v. Touche Ross & Co., 68 F.R.D. 243, 246 (S.D.N.Y.1975); see Felton v. Walston & Co., 508 F.2d 577, 581 (2d Cir. 1974). This, however, is the least of the complaint’s deficiencies. B. Allegations Made on “Information and Belief’’ Morgan’s entire complaint is alleged “on information and belief.” The law permits a plaintiff charging fraud to plead in this manner only those matters peculiarly within the adverse party’s knowledge. Segal v. Gordon, 467 F.2d 602, 608 (2d Cir. 1972); Armstrong v. McAlpin, [Current] Fed.Sec.L.Rep. (CCH) ¶ 96,323 at 93,078 (S.D.N.Y. January 26,1978). It would be a wasteful exercise to detail here the allegations in the complaint relating to matters obviously not within the peculiar knowledge of the defendants (for instance, Morgan presumably has actual knowledge of the fact that “[p]laintiff is a limited partner in Plaza One Development Fund,” and it seems unlikely that the characterization of the contents of the “selling documents” (quoted in note 1) is based on nothing more than information and belief), but the distinction between “information and belief” and “actual knowledge” is not a specious one, and it should be observed. More importantly, allegations that are made on information and belief must be supported by a “statement of the facts upon which the belief is founded.” Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974), cert, denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); accord, Segal v. Gordon, 467 F.2d 602, 608 (2d Cir. 1972); Armstrong v. McAlpin, [Current] Fed.Sec.L.Rep. (CCH) ¶ 96,323 at 93,078 (S.D.N.Y. January 26, 1978); Jacobsen v. Peat, Marwick, Mitchell & Co., 445 F.Supp. 518, 522 (S.D.N.Y.1977). Morgan’s most significant failure" }, { "docid": "23139751", "title": "", "text": "portion of the caption describing the suit as one arising under the “Securities Act of 1933” and the “Securities Exchange Act of 1934 and Rules Promulgated Thereunder,” with jurisdiction invoked on the basis of that legislation. The complaint (Par. 22) charges that G & W and its chief operating officer Bluhdorn “warranted to the general public that the purchase of the 3,750,000 shares in question was for investment, purposes ■ and that said defendants had complied with all laws, rules and regulations pertaining to said tender offer and that there were no legal impediments to the purchase of said shares from the general public.” (App. 13a). These allegations of violation of our federal securities laws are indeed extremely general and obviously vulnerable to attack for lack of the particularity required by Rule 9(b), F.R.Civ.P., especially in the absence of any allegations of scienter or fraudulent intent, see Felton v. Walston and Co., Inc., 508 F.2d 577 (2d Cir. 1974); Segal v. Gordon, 467 F.2d 602 (2d Cir. 1972); Shemtob v. Shearson, Hammill & Co., 448 F.2d 442 (2d Cir. 1971); but cf. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 378-79 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). However, dismissal of the complaint on such grounds would not necessarily be final, as was the order here, but could be without prejudice to the filing of an amended complaint specifying the facts forming the basis of the claims of fraud, cf. Felton v. Walston and Co., Inc., supra; Mooney v. Vitolo, 435 F.2d 839 (2d Cir. 1970). In our view sufficient notice was given of the plaintiff’s claim and the grounds upon which it rested, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), to entitle plaintiff to amend, cf. Schlick v. Penn-Dixie Cement Corp., supra. In dismissing the complaint Judge Duffy did not proceed on the basis that the complaint could under no circumstances be construed as alleging a Williams Act claim. He noted that “[i]f this were the only action filed by this plaintiff, I" }, { "docid": "23520971", "title": "", "text": "U.S.C. § 77v; Section 27 of the Exchange Act, 15 U.S.C. § 78aa; and pendent jurisdiction. Motion to Dismiss under Rule 9(b) Federal Rule of Civil Procedure 9(b) reads as follows: “Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” It is clear, and the plaintiffs do not contest the position, that this rule applies to the allegations of fraud contained in the complaint involved in this case. Segal v. Gordon, 467 F.2d 602, 607 (2d Cir. 1972); Shemtob v. Shearson Hammill & Co., Inc., 448 F.2d 442 (2d Cir. 1971); Elster v. Alexander, 75 F.R.D. 458 (N.D.Ga.1977). Consequently a review of the directives which the courts have interpreted as emanating from this rule is appropriate before examining the particulars of the pleadings of fraud in the instant complaint. I. It should be understood at the outset that the Rule 9(b) requirements must be reconciled with Fed.R.Civ.P. 8 which requires, inter alia, a “short and plain statement of the claim showing that the pleader is entitled to relief”, Felton v. Walston and Co., Inc., 508 F.2d 577, 581 (2d Cir. 1974); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974), cert, denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). Nevertheless, courts are required to examine the complaints with reference to the purposes behind Rule 9(b). Thus the application of the rule contributes to: minimizing the number of strike suits; protecting defendants from the harm that results from charges of serious wrongdoing, Segan v. Dreyfus Corp., 513 F.2d 695, 696 (2d Cir. 1975); Segal, supra, 467 F.2d at 607; and inhibiting the filing of a complaint as a pretext for discovering unknown wrongs, Gross v. Diversified Mortgage Investors, (Gross I), 431 F.Supp. 1080, 1087 (S.D.N.Y.1977); see Se-gal, supra, 467 F.2d at 607-08. Additionally, in what would appear to constitute as salient a consideration as any, Rule 9(b) assures that the defendants are given notice of" }, { "docid": "22409581", "title": "", "text": "including CM ART, would run into serious trouble, necessitating a transaction between CMART and the Bank fully described in the 1975 Annual Report (pp. 5, 42); and that New York City would come to the verge of bankruptcy late in that year, failure to make such perceptions does not constitute fraud. Nowhere does the complaint allege with the required particularity transactions about which defendants in fact had such perceptions or were reckless in not having them when the 1973 and early 1974 reports were issued. Plaintiff’s counsel has called our attention to a number of district court decisions, notably duPont v. Wyly, 61 F.R.D. 615 (D.Del.1973), and Denny v. Carey, 72 F.R.D. 574 (E.D.Pa.1976), in the latter of which he was counsel for. the same plaintiff as here, which are alleged to have sustained complaints no more specific than this. Defendants dispute this and counter with an equal number of district court decisions alleged to have dismissed complaints more specific than this one. We see no profit in attempting to analyze these decisions, which may or may not be consistent and each of which necessarily rests on its particular facts. We follow the rule laid down by our own decisions, notably Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2 Cir. 1971), Segal v. Gordon, 467 F.2d 602, 607 (2 Cir. 1972), Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 378-80 (2 Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1965), and Felton v. Walston and Co., 508 F.2d 577 (2 Cir. 1974). Recognizing the difficulties encountered by a small stockholder in framing a Rule 10b-5 complaint against a large corporation which has not been the subject of a publicized official investigation and the consequent need, noted in Schlick, for relaxing the requirement that allegations of fraud should be based on something more than information and belief, there still must be more than vague allegations that, as shown by subsequent developments, the corporation’s true financial picture was not so bright in some respects as its annual reports had painted and that the defendants" }, { "docid": "2659429", "title": "", "text": "plaintiffs claim to have been defrauded.” We agree. Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” This plaintiffs have clearly failed to do. Their complaint does no more than make unsubstantiated conclusory allegations. The Court of Appeals for this Circuit has held that “mere conclusory allegations to the effect that defendant’s conduct was fraudulent or in violation of Rule 10b-5 are insufficient.” Shemtob v. Shearson, Hammill & Co. (2d Cir. 1971) 448 F.2d 442, 444. See also Denny v. Barber (2d Cir. 1978) 576 F.2d 465, 470; Felton v. Walston and Co., Inc. (2d Cir. 1974) 508 F.2d 577, 580-81; Segal v. Gordon (2d Cir. 1972) 467 F.2d 602, 607. Most recently it observed in Ross v. A. H. Robins Company, Inc. (2d Cir. 1979) 607 F.2d 545, 557-558: “These decisions taken together establish that a plaintiff alleging fraud in connection with a securities transaction must specifically allege the acts or omissions upon which his claim rests. It will not do merely to track the language of Rule 10b-5 and rely on such meaningless phrases as ‘scheme and conspiracy’ or ‘plan and scheme and course of conduct to deceive.’ A defendant is entitled to a reasonable opportunity to answer the complaint and must be given adequate information to frame a response.” For instance, in order to support a cause of action for churning, plaintiffs cannot merely allege in conclusory terms that defendants have been guilty of churning, or that defendants may have purchased and sold securities which were “excessive in number, frequency and amount.” (Complaint ¶ 10) “[T]he nature, amount and dates of securities transactions must be included in the complaint.” (Todd v. Oppenheimer & Co., Inc. (S.D.N.Y.1978) 78 F.R.D. 415, 423. In addition, the complaint must identify the securities involved and should contain a “statement of facts permitting a determination of the turnover ratio or the percentage of the account value paid in commissions.” Salwen Paper Company, Inc. Profit Sharing Retirement Trust v. Merrill Lynch, Pierce, Fenner &" } ]

[ { "docid": "22721414", "title": "", "text": "articles” rather than “an invasion of the defendant’s privacy.” Id., at 14. Under Couch, therefore, one criterion is whether or not the information sought to be produced has been disclosed to or was within the knowledge of a third party. 409 U. S., at 332-333. That is to say, one relevant consideration is the degree to which the paper holder has sought to keep private the contents of the papers he desires not to produce. Most recently, Bellis v. United States, 417 U. S. 85 (1974), followed the approach taken in Wilson. Beilis held that the partner of a small law firm could not invoke the privilege against self-incrimination to justify his refusal to comply with a subpoena requiring production of the partnership’s financial records. Beilis stated: “It has long been established . . . that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony.... The privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life.” 417 U. S., at 87-88. Bellis also recognized that the Court’s “decisions holding the privilege inapplicable to the records of a collective entity also reflect . . . the protection of an individual’s right to a ‘private enclave where he may lead a private life.’ . . . Protection of individual privacy was the major theme running through the Court’s decision in Boyd . . . and it was on this basis that the Court in Wilson distinguished the corporate records involved in that case from the private papers at issue in Boyd.” Id., at 91-92. “[C]or- porate records do not contain the requisite element of privacy or confidentiality essential for the privilege to attach.” Id., at 92. Beilis concluded that the same considerations which precluded reliance upon the privilege with respect to corporate records also precluded reliance upon it with respect to partnership records in the circumstances of that case. A precise cataloguing of private papers within the ambit" } ]

[ { "docid": "5804759", "title": "", "text": "compulsory production of an invoice of certain imported glass owned by a partnership was unconstitutional in a forfeiture case, stating that “a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself” in violation of the Fifth Amendment. 116 U.S. 634-35, 6 S.Ct. at 534. Although later cases have not explicitly overruled Boyd, its reasoning and holding have been so seriously eroded that little if anything remains of either. See, e.g., Note, The Rights of Criminal Defendants and the Subpoena Duces Tecum: The Aftermath of Fisher v. United States, 95 Harv.L.Rev. 683 (1982); Note, The Life and Times of Boyd v. United States (1886-1976), 76 Mich.L.Rev. 184 (1977). Most significantly, in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the Supreme Court held that taxpayers had no Fifth Amendment rights against the compulsory production of certain documents held by their lawyers relating to the preparation of their income tax returns, emphasizing that the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. Id. at 396-97, 96 S.Ct. at 1573-74; see United States v. Doe, 465 U.S. 605, 610, 104 S.Ct. 1237, 1240, 79 L.Ed.2d 552 (1984) (emphasis in originals). That the documents on their face might incriminate the taxpayers did not in itself implicate the Fifth Amendment. Because no compulsion was involved in preparing the documents, their contents were not protected. Fisher, 425 U.S. at 410-11 & n. 11, 96 S.Ct. at 1580-81 & n. 11. In United States v. Doe, the Supreme Court quoted extensively from Fisher in holding that the Fifth Amendment only applied to the defendant’s act of producing certain documents relating to the operation of several sole proprietorships, not to the voluntarily compiled contents of the documents. “A subpoena that demands production of documents ‘does not compel oral testimony; nor would it ordinarily compel the [defendant] to restate, repeat, or affirm the truth of the documents sought.’ ” Doe, 465 U.S. at 610-11, 104 S.Ct. at 1241," }, { "docid": "393549", "title": "", "text": "subpoena] or of anyone else.” Id. at 409-10, 96 S.Ct. at 1580-81 (footnote omitted). The Fisher Court concluded the act of production did not involve testimonial self-incrimination because the existence and location of the papers were a “foregone conclusion” and thus production added “little or nothing to the sum total of the Government’s information....” Id. at 411, 96 S.Ct. at 1581. The Court recognized, however, that the act of producing the documents in certain circumstances may be testimonial to the extent that the act of production concedes “the existence of the papers demanded and their possession or control by the taxpayer,” or because the production serves to authenticate the materials in question. Fisher, 425 U.S. at 410, 96 S.Ct. at 1581. Eight years later, the Court applied the Fisher analysis in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), when a sole proprietor invoked a Fifth Amendment privilege to resist production of subpoenaed business records. In Doe, the Court explained and followed its earlier analysis in Fisher by specifically indicating that the contents of the subpoenaed records were not privileged, and that the sole proprietor’s act of producing the subpoenaed records was the only testimonial communication compelled by the subpoena. Id. at 612, 104 S.Ct. at 1242. (“Where the preparation of business records is voluntary, no compulsion is present. A subpoena that demands production of documents ‘does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.’ ”) Id. at 610-11, 104 S.Ct. at 1241 (citing Fisher, 425 U.S. at 409, 96 S.Ct. at 1580) (footnote omitted). Although these cases concerned the subpoena of business records, the Court’s recent and apparent abandonment of the traditional Fifth Amendment inquiry into the nature of the contents of documents, see e.g., Bellis v. United States, 417 U.S. 85, 87-95, 94 S.Ct. 2179, 2182-87, 40 L.Ed.2d 678 (1974) (containing history of Court’s practice of distinguishing between business and private papers and status of their possession), as well as some dicta in the opinions" }, { "docid": "23384453", "title": "", "text": "“self-created.” For this proposition they rely upon language used by us in In re Grand Jury Proceedings (Martinez), 626 F.2d 1051, 1054, 1056 (1st Cir.1980), and United States v. Doe, 628 F.2d 694, 696 (1st Cir. 1980). We indicated in Doe that: After Fisher v. United States ... it was clear that the subpoena of business records implicates the Fifth Amendment only when those records are possessed by the individual who created them____ Thus, to gain even the limited privilege afforded by In re Grand Jury Proceedings, supra, the custodian of the records must show that the records he possesses are those of his sole proprietorship and that he created them____ Id. at 696. A recent decision of the Supreme Court, however, namely United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), leads us to conclude that perhaps we read too much into Fisher, which, we must concede, does not contain explicit language requiring “self-creation” as part of the Court’s new emphasis on the possible incriminatory testimonial aspects of producing documents. Interestingly enough, although the Court cites our In re Grand Jury Proceedings (Martinez) with approval, 104 S.Ct. at 1242 n. 10, that case is noted by the Court for the proposition that Fisher ended the content-oriented approach to fifth amendment protection in document production, substituting for it the new Fisher emphasis. No mention is made by the Court of our “self-creation” requirement. Indeed the Supreme Court could not have intended such a requirement were it to reach the result that it did in that Doe case, because many of the documents it ruled were protected under the Fisher doctrine were obviously not “self-created” by Doe. See United States v. Doe, 104 S.Ct. at 1239 n. 1, n. 2 (bank statements, telephone company statements of calls and telegraphs, all correspondence and memorandum, bid bonds, and contracts). Furthermore, in reconsidering the teachings of Fisher in the light of the specific issue now before us, it is apparent that the Court was not relying on a “self-creation” requirement in rejecting Fisher’s claim of privilege. Had that been" }, { "docid": "21723250", "title": "", "text": "from the individual owner’s personal records.” Id. This was the crux of the case. The subpoena sought personal records of the person subpoenaed. A sole proprietorship, though a business, is not a collective entity. Its records are personal property of the owner. In producing them, the owner acts for himself, not in a representative capacity. In upholding the claim of privilege in Doe the Supreme Court noted that the district court had made an explicit finding that the act of producing the documents would involve testimonial self-incrimination. The court of appeals agreed with this finding and the Supreme Court declined to overturn it. This finding compelled the conclusion that the person subpoenaed was entitled to assert a Fifth Amendment privilege in the light of Fisher. Doe was an application of Fisher to the business records of a sole proprietorship where a grand jury subpoena sought to require the owner of the business to produce the records. There is nothing in the Doe decision which supports an inference that the collective entity rule, developed by the Supreme Court over a period of nearly 80 years, was overruled sub silentio. B. Courts which have faced the issue have continued to recognize the'collective entity rule since the appearance of Doe. In Butcher v. Bailey, 753 F.2d 465, 471 n. 9 (6th Cir.1985), this court referred to the rule and stated, “Doe, supra, is not to the contrary, as it involved the records of a sole proprietorship.” The Tenth Circuit reached the same conclusion in In re Grand Jury Proceedings (Vargas), stating: While Doe clearly recognizes that the production of personal papers may be a testimonial act protected by the fifth amendment, that case does not involve papers held by one in a representative capacity. Id., 465 U.S. at ---, 104 S.Ct. at 1241-42. As the Supreme Court made clear in Fisher v. United States, 425 U.S. 391, 413 & n. 14, 96 S.Ct. 1569, 1582 & n. 14, 48 L.Ed.2d 39 (1976), even though the production of papers held in a representative capacity may be a testimonial act, such production is not protected" }, { "docid": "5804760", "title": "", "text": "returns, emphasizing that the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. Id. at 396-97, 96 S.Ct. at 1573-74; see United States v. Doe, 465 U.S. 605, 610, 104 S.Ct. 1237, 1240, 79 L.Ed.2d 552 (1984) (emphasis in originals). That the documents on their face might incriminate the taxpayers did not in itself implicate the Fifth Amendment. Because no compulsion was involved in preparing the documents, their contents were not protected. Fisher, 425 U.S. at 410-11 & n. 11, 96 S.Ct. at 1580-81 & n. 11. In United States v. Doe, the Supreme Court quoted extensively from Fisher in holding that the Fifth Amendment only applied to the defendant’s act of producing certain documents relating to the operation of several sole proprietorships, not to the voluntarily compiled contents of the documents. “A subpoena that demands production of documents ‘does not compel oral testimony; nor would it ordinarily compel the [defendant] to restate, repeat, or affirm the truth of the documents sought.’ ” Doe, 465 U.S. at 610-11, 104 S.Ct. at 1241, quoting Fisher, 425 U.S. at 409, 96 S.Ct. at 1580. The subpoena compels the act of producing documents, and the testimonial aspects of that act may be privileged under the Fifth Amendment. See Doe, 465 U.S. at 612-14, 104 S.Ct. at 1242-43. However, the Court confirmed that “[i]f the party asserting the privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged.” Id. at 612 n. 10, 104 S.Ct. at 1242 n. 10. Both Doe and Fisher addressed the argument that the Fifth Amendment creates a zone of privacy which protects an individual and his personal records from compelled production by observing that: Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort. Doe, 465 U.S." }, { "docid": "6047176", "title": "", "text": "We have on prior occasions treated appeals from orders concerning grand jury subpoenas as civil actions subject to the provisions of Fed.R.App.P. 4(a). See e.g., United States v. Weinberg, 436 F.2d 416 (9th Cir.1970); 439 F.2d 743 (9th Cir.1971); cf. United States v. Bonnell, 483 F.Supp. 1091 (D.Minn.1979) (grand jury subpoena treated as civil action for purposes of certifying appeal from an order refusing to stay its enforcement). We have done so only implicitly. We now make explicit the rule that such appeals are governed by the 30- or 60-day notice requirement of Fed.R.App.P. 4(a). Accordingly, this appeal is timely. II. Fifth Amendment Claim The fifth amendment privilege against compelled self-incrimination does not protect the contents of the business records of a sole proprietorship. United States v. Doe, — U.S.—, 104 S.Ct. 1237, 1241, 79 L.Ed.2d 552 (1984). Even if the records were prepared by the sole proprietor, so long as they were voluntarily prepared, they may be subpoenaed and used against the proprietor without violating his right against compulsory self-incrimination. Id.; see Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). It is a different matter, however, if the proprietor himself is compelled to produce the records. “Although the contents of a document may not be privileged, the act of producing the document may be.” Doe, — U.S. at—, 104 S.Ct. at 1242 (quoting Fisher, 425 U.S. at 410, 96 S.Ct. at 1580). The Supreme Court therefore held in Doe that a proprietor could not be compelled to produce his records because the act of production, under the facts of that case, would have involved compelled admissions that the documents existed, that they were in the proprietor’s possession, and that they were authentic. Doe, — U.S. at—, & nn. 11 & 12, 104 S.Ct. at 1243 & nn. 11 & 12. Consequently, the proprietor could only be compelled to produce the records if he were formally granted immunity for the act of production. Id. 104 S.Ct. at 1245. The government here concedes that it cannot compel production of the proprietorship documents from Manges himself." }, { "docid": "3565724", "title": "", "text": "an executive’s production of records might compel the partnership or corpora tion to bear witness against him, it does not compel the partner or executive to bear witness against himself. A sole proprietor, however, stands on different constitutional grounds. Because a sole proprietorship has no legal existence apart from its owner, the compelled disclosure of a sole, proprietor’s private or business papers implicates his privilege against self-incrimination. It has long been established, of course, that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony.... The privilege applies [as well] to the business records of the sole proprietor or sole practitioner .... Bellis v. United States, 417 U.S. at 87-88, 94 S.Ct. at 2182-2183. See also In re Doe, 711 F.2d 1187, 1190-91 (2d Cir.1983) (applying privilege to sole practitioner’s disclosure of patient records). Dr. Fox is a sole proprietor. He contends that the enforcement of the summons would result in compelled testimonial self-incrimination violative of the Fifth Amendment. On the authority of Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), we agree that Dr. Fox cannot be compelled to incriminate himself through production of his business and personal records. I. Fifth Amendment Protection Against Compelled Incriminatory Testimony In Fisher, the IRS issued a summons to the taxpayer’s attorney for production of tax returns that had been prepared for the taxpayer by an independent accountant. The Court held that the attorney’s production of the tax returns would not violate the taxpayer’s Fifth Amendment privilege because an accused is entitled to Fifth Amendment protection only where he is “compelled to make a testimonial communication that is incriminating.” 425 U.S. at 408, 96 S.Ct. at 1579 (emphasis in original). The Court’s decision grounded the Fifth Amendment privilege against document production on the “communicative aspects” of the act of production. It concluded that compliance with a document subpoena may require “incriminating testimony” in two situations: (1) if the existence and location of the subpoenaed papers are unknown to the government, then the" }, { "docid": "6010044", "title": "", "text": "410 U.S. 1, 11, 93 S.Ct. 764, 770, 35 L.Ed.2d 67 (1973) (grand jury “cannot require the production by a person of private books and records that would incriminate him”); Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966) (fifth amendment reaches “compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers”); United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944) (privilege “protects the individual from any disclosure, in the form of ... documents, sought by legal process against him as a witness”). No later decision of the Supreme Court has held to the contrary on the point directly in issue. The government here relies on dicta in several recent decisions of the Court to support its view. The dicta are assuredly there, but none of these decisions has overruled Boyd. The Supreme Court’s decision in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), which the government contends resulted in the “peaceful interment” of Boyd, involved a subpoena issued to a third party for the production of business records which were not written by the proponent of the privilege. The Fisher Court took pains to distinguish Boyd, and explicitly reserved judgment on the question presented here— whether the compelled production of the proponent’s own papers would violate the Constitution. See 425 U.S. at 414, 96 S.Ct. at 1582. Other cases relied upon by the government merely reiterate the well-established premise that an individual holding the documents of an artificial entity, whether a corporation, partnership or sole proprietorship, cannot assert a fifth amendment privilege. See United States v. Doe, — U.S. —, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (sole proprietorship); United States v. Fishman, 726 F.2d 125 (4th Cir. 1983) (sole proprietorship). See also Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (search for business records of law office does not violate fifth amendment). Ill Among other things, the fifth amendment evinces “our respect for the inviolability of the" }, { "docid": "2784026", "title": "", "text": "appointed agent — here his attorney. That particular issue remains open and unresolved, despite any intimation to the contrary in the majority’s opinion. See maj. op., at 531, n. 4. . In Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913) the party subpoenaed to produce the documents was not himself, as in this case, the sole shareholder of the corporation. Nevertheless, Grant establishes that no corporation, not even a one-man corporation, may assert the fifth amendment privilege on its own behalf. I recognize that Grant was decided long before professional corporations were authorized or gained currency. Nevertheless, Grant has yet to be overruled, and indeed has been cited as authoritative as recently as 1974 in Bellis v. United States, 417 U.S. 85, 100, 94 S.Ct. 2179, 2189, 40 L.Ed.2d 678 (1974). . Since this case involves no more than the production of documents by a corporate representative, I need not rely on United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir.), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929), which the majority takes great pains to reject. It is significant, however, that the Austin-Bagley rule decried by the majority finds expression in the passage of Curcio v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225 (1957) quoted in text. Curdo, while distinguishing Austin-Bagley, cites the Austin Bagley case with approval. . Indeed, the United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) Court indicated that it considered its holding completely consistent with both United States v. Fisher, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) and Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). See Doe, — U.S. at -, 104 S.Ct. at 1240. Doe’s two-part holding held first, that voluntarily kept business records of a sole proprietorship, like voluntarily kept business records of any other entity, are not themselves protected by the fifth amendment. In the second part of the Doe holding, the Court recognized that the act of production" }, { "docid": "2783999", "title": "", "text": "records to be meritless because Brown was the representative of the corporation, held Brown in contempt. I. In this case, the majority opinion holds that a corporate representative obliged to produce corporate records subpoenaed by the government may assert his personal fifth amendment privilege against self-incrimination. The majority opinion so holds in the face of nearly eighty years of unvarying and continuous Supreme Court precedent to the contrary. As most recently stated in the words of Justice Marshall in Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974): (A) ... long line of cases has established that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally. This principle was established for corporate records, including records of a one-man corporation, in the early part of this century. See, e.g., Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913) (sole shareholder of corporation subject to subpoena); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911). Rather than create an exception to the corporate records rule for professional corporations, if indeed such an exception can be justified in light of Supreme Court precedent and reasoning, the majority opinion virtually ignores the corporate records rule, implicitly relying on the recent United States v. Fisher, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) cases as having overruled Beilis sub silentio. Yet this is not the case. Neither Fisher nor Doe dealt with corporate records. Neither Fisher nor Doe has sapped the vitality of Bellis. Thus, the real issue in this case, which the majority fails to address, is whether production of the records of a one-man professional corporation is to be treated as production by a sole proprietor— the sort of production involved in Doe —or is to be treated as production by a representative of a" }, { "docid": "21723253", "title": "", "text": "of production.” In re Grand Jury Empanelled March 8, 1983, 722 F.2d at 297, quoting United States v. Schlansky, 709 F.2d at 1083. The judgment of the district court is affirmed. NATHANIEL R. JONES, Circuit Judge, joined by BOYCE F. MARTIN, Circuit Judge. I respectfully dissent. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), establish the principle that, without reference to the content or origin of documents sought by a subpoena, the compelled act of producing documents may be testimonial and self-incriminating, and therefore privileged under the Fifth Amendment. In Doe, the Supreme Court rejected the Third Circuit’s holding that the voluntarily-created business records of a sole proprietorship are privileged because they are the equivalent of “the individual owner’s personal records.” See 104 S.Ct. at 1240-42. The Court reaffirmed that the contents of voluntarily-created business records are not privileged. Nevertheless, the Court held that “[ajlthough the contents of a document may not be privileged, the act of producing the document may be.” 104 S.Ct. at 1242. To determine whether the act of producing documents was potentially incriminating, the Court in Doe did not consider the content of the documents, whether their creation was voluntary or mandatory, or whether their ownership was private or collective. The Court stated that “ ‘[compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer ... [and] the taxpayer’s belief that the papers are those described in the subpoena.’ ” Doe, 104 S.Ct. at 1242 (quoting Fisher v. United States, 425 U.S. at 410, 96 S.Ct. at 1581). The controlling questions under Doe are whether the act of producing the documents will concede these facts and, if so, whether any of these concessions is self-incriminating. The majority objects that such a reading of Doe does not take account of the continuing vitality of Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). It is apparent to me that Doe does" }, { "docid": "23384452", "title": "", "text": "Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433 (1906); see generally Note, The Life and Times of Boyd v. United States (1886-1976), 76 Mich.L.Rev. 184 (1977). The rule today, however, is more limited. The compelled production of such documents is prohibited only if there are testimonial aspects to the act of production itself. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984). This rule extends to the business records of a sole proprietor. United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984). In this context, the rule has three elements: The fifth amendment protects against compulsory surrender of (1) personal business records, (2) in the possession of a sole proprietor or practitioner, (3) only with respect to the testimonial act implicit in the surrender itself. Fisher, supra; Doe, supra. The appellees urge, and the district court so found, that a fourth requisite should be added: that the documents be “self-created.” For this proposition they rely upon language used by us in In re Grand Jury Proceedings (Martinez), 626 F.2d 1051, 1054, 1056 (1st Cir.1980), and United States v. Doe, 628 F.2d 694, 696 (1st Cir. 1980). We indicated in Doe that: After Fisher v. United States ... it was clear that the subpoena of business records implicates the Fifth Amendment only when those records are possessed by the individual who created them____ Thus, to gain even the limited privilege afforded by In re Grand Jury Proceedings, supra, the custodian of the records must show that the records he possesses are those of his sole proprietorship and that he created them____ Id. at 696. A recent decision of the Supreme Court, however, namely United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), leads us to conclude that perhaps we read too much into Fisher, which, we must concede, does not contain explicit language requiring “self-creation” as part of the Court’s new emphasis on the possible incriminatory testimonial aspects of producing" }, { "docid": "13023492", "title": "", "text": "question left open in Braswell. The privilege against compulsory self-incrimination is, of course, personal, and does not apply to collective entities, such as corporations. Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2183-84, 40 L.Ed.2d 678 (1974). Ashford is a one-man operation; however, it is still a corporation, a state law-regulated entity that has a separate legal existence from Wujkowski shielding him from its liabilities. The business could have been formed as an unincorporated sole proprietorship and production of its business records protected by the privilege against self-incrimination. See United States v. Doe, 465 U.S. 605, 608, 104 S.Ct. 1237, 1240, 79 L.Ed.2d 552 (1984). Wujkowski chose the corporate form and gained its attendant benefits, and we hold, in accord with the decisions of sister circuits, that he cannot now disregard the corporate form to shield his business records from production. United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 394 (1st Cir.1988); In re Grand Jury Proceedings (John Doe Co.), 838 F.2d 624, 627 (1st Cir.1988); In re Grand Jury Proceedings (Morganstern), 771 F.2d 143, 148 (6th Cir.) (en banc), cert. denied, 474 U.S. 1033, 106 S.Ct. 594, 88 L.Ed.2d 574 (1985); In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52, 59 (2d Cir.1985). Accordingly, the district court’s judgment is affirmed. AFFIRMED. If Wujkowski’s production of the records is insufficient to authenticate them, there is no self-incrimination. See Fisher, 425 U.S. at 413, 96 S.Ct. at 1582; Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir.), cert. dismissed, 473 U.S. 925, 106 S.Ct. 17, 87 L.Ed.2d 696 (1985)." }, { "docid": "21723252", "title": "", "text": "by the fifth amendment. 727 F.2d at 946. It is a truism that the privilege against compulsory self-incrimination is a personal one. No collective entity may claim it. Since collective entities can act only through officers and agents, the effect of permitting custodians of partnership and corporate records to avoid production of such records in reliance on the Fifth Amendment would be to extend the privilege against self-incrimination to the collective entities. The custodian of corporate or partnership records acts only in a representative capacity, not as an individual, and production of the records is not a testimonial act of the custodian. Production of the records communicates nothing more than the fact that the one producing them is a representative of the corporation or partnership. C. It is well settled in this circuit that if the government later attempts to implicate the custodian on the basis of the act of production, evidence of that fact is subject to a motion to suppress. “Such proof would seek to add testimonial value to the otherwise testimony-free act of production.” In re Grand Jury Empanelled March 8, 1983, 722 F.2d at 297, quoting United States v. Schlansky, 709 F.2d at 1083. The judgment of the district court is affirmed. NATHANIEL R. JONES, Circuit Judge, joined by BOYCE F. MARTIN, Circuit Judge. I respectfully dissent. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), establish the principle that, without reference to the content or origin of documents sought by a subpoena, the compelled act of producing documents may be testimonial and self-incriminating, and therefore privileged under the Fifth Amendment. In Doe, the Supreme Court rejected the Third Circuit’s holding that the voluntarily-created business records of a sole proprietorship are privileged because they are the equivalent of “the individual owner’s personal records.” See 104 S.Ct. at 1240-42. The Court reaffirmed that the contents of voluntarily-created business records are not privileged. Nevertheless, the Court held that “[ajlthough the contents of a document may not be privileged," }, { "docid": "5804763", "title": "", "text": "Government’s request [citation omitted]”). However, it is difficult to reconcile the holding of (Under Seal) with the emphasis on compulsion adopted in the Fisher and Doe majority opinions. In Doe, the Court of Appeals had reasoned that, notwithstanding the holdings in Bellis [v. United States, 417 U.S. 85 [94 S.Ct. 2179, 40 L.Ed.2d 678] (1974)] and Fisher, the business records of a sole proprietorship are no different from the individual owner’s personal records. Noting that Third Circuit cases had held that private papers, although created voluntarily, are protected by the Fifth Amendment, the court accorded the same protection to respondent’s business papers. 465 U.S. at 609, 104 S.Ct. at 1240 (footnotes omitted). Rather than affirm the result by adopting a distinction between records held in a representative capacity and those held in a personal capacity, the Supreme Court reversed, criticizing the Third Circuit for adopting an unduly restrictive reading of Fisher’s focus on compulsion. Doe, 465 U.S. at 612 n. 9, 104 S.Ct. at 1242 n. 9. If the Fifth Amendment does not protect the contents of voluntarily prepared business records held by the owner of a sole proprietorship because no compulsion was involved in their creation, it is difficult to see why the contents of an individual’s voluntarily created private financial records should be treated differently. Whatever is left of the holding in Boyd, it does not extend to financial records such as checks, check registers or information reflecting withdrawals from accounts. See United States v. Porter, 557 F.Supp. 703, 714-15 (N.D.Ill.1982) (respondent’s appointment book was content-protected under the Fifth Amendment, but cancelled checks and withdrawal slips were not), rev’d, 711 F.2d 1397 (7th Cir.1983) (contents of cancelled cheeks and withdrawal slips are not protected, but the act of producing them is); see also Fisher, 425 U.S. at 427, 96 S.Ct. at 1589 (Brennan, J., concurring) (“[Nonbusiness economic records in the possession of an individual] are, however, like business records and the papers involved in those cases, frequently, though not always, disclosed to other parties; and disclosure, in proper cases, may foreclose reliance upon the privilege.”); cf. United States" }, { "docid": "751711", "title": "", "text": "as a partnership and therefore its records were those of a sole proprietorship. Obviously, this argument was made to avoid the holding of Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (partnership records not privileged). Petitioner’s Memorandum in Support of Motion to Quash or Modify Subpoenas, Appendix at p. 2. However, the legal efficacy of this partnership/sole proprietorship distinction was removed by the Court’s holding in United States v. Doe, — U.S. -, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (sole proprietorship business records are not privileged). In light of Doe, petitioner now concedes that the contents of any business records in his possession (either those of POE or those of his own) are not privileged for fifth amendment purposes. Thus, the inquiry must focus on petitioner’s non-business personal papers. . Although the partnership/sole proprietorship distinction is no longer relevant in the context of whether the documents themselves are privileged, the distinction may be important in applying the \"act of production” doctrine. At the April 2, 1984 hearing, counsel for petitioner stated that for the limited purpose of the court’s consideration of his Motion to Quash, he would stipulate POE is a partnership. . The court's use of the term \"non-business personal papers” is intended to encompass all of Mr. Kenney's personal (not those he holds as custodian of POE) papers which are not germane to his activities as a contract broker. Those papers which are closely related to such activities are \"business records” and are thus not privileged under Doe, 104 S.Ct. at 1242. . While this court recognizes that the Fisher Court’s new analytical framework, discussed infra, is, on its face, content neutral (i.e., it does not distinguish between business or personal documents) many jurists (including Justices Marshall and Brennan) and commentators have not accepted such a broad application of Fisher. See, e.g., Doe, 104 S.Ct. at 1245-1246; Matter of Grand Jury Empanelled March 19, 1980, 680 F.2d 327, 333-334 (3rd Cir.1982). . Personal diaries and non-business personal letters may well fall into this category. See, Fisher, 425 U.S. at 401 n." }, { "docid": "2784000", "title": "", "text": "of corporation subject to subpoena); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911). Rather than create an exception to the corporate records rule for professional corporations, if indeed such an exception can be justified in light of Supreme Court precedent and reasoning, the majority opinion virtually ignores the corporate records rule, implicitly relying on the recent United States v. Fisher, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) cases as having overruled Beilis sub silentio. Yet this is not the case. Neither Fisher nor Doe dealt with corporate records. Neither Fisher nor Doe has sapped the vitality of Bellis. Thus, the real issue in this case, which the majority fails to address, is whether production of the records of a one-man professional corporation is to be treated as production by a sole proprietor— the sort of production involved in Doe —or is to be treated as production by a representative of a collective, corporate entity— the sort of production involved in Wilson and Grant. Stated differently, the question is whether the fifth amendment privilege is available when a professional one man corporation is subpoenaed to produce records and the production of these records may incriminate the “one man.” This is the one issue to which the Supreme Court has yet to speak, and it is the one issue which has led to conflicting determinations in other federal courts. See In Re Grand Jury Proceedings, Morganstern, 747 F.2d 1098 (6th Cir.1984), vacated and listed in banc, 760 F.2d 670 (6th Cir.1985); Butcher v. Bailey, 753 F.2d 465, 471 n. 9 (6th Cir.1985); In Re Grand Jury Subpoena Duces Tecum (Doe), 605 F.Supp. 174 (E.D.N.Y.1985). By treating this as a compelled testimony case rather than a compelled corporate document production case, the majority has decided a case not before us. It is for these reasons that I respectfully dissent. II. Significantly, in deciding this case, the majority opinion makes no specific reference to the subpoena that was issued to" }, { "docid": "393550", "title": "", "text": "indicating that the contents of the subpoenaed records were not privileged, and that the sole proprietor’s act of producing the subpoenaed records was the only testimonial communication compelled by the subpoena. Id. at 612, 104 S.Ct. at 1242. (“Where the preparation of business records is voluntary, no compulsion is present. A subpoena that demands production of documents ‘does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.’ ”) Id. at 610-11, 104 S.Ct. at 1241 (citing Fisher, 425 U.S. at 409, 96 S.Ct. at 1580) (footnote omitted). Although these cases concerned the subpoena of business records, the Court’s recent and apparent abandonment of the traditional Fifth Amendment inquiry into the nature of the contents of documents, see e.g., Bellis v. United States, 417 U.S. 85, 87-95, 94 S.Ct. 2179, 2182-87, 40 L.Ed.2d 678 (1974) (containing history of Court’s practice of distinguishing between business and private papers and status of their possession), as well as some dicta in the opinions calls into question Boyd’s continued protection for private papers. In 1988, the First Circuit, recognizing this question to be an open question of law, surveyed the Circuits’ diverging opinions regarding Justice O’Connor’s conclusion that Fisher and Doe implicitly had overruled Boyd’s protection for private papers. See In re Steinberg, 837 F.2d 527, 529-30 & nn. 3-4 (1st Cir.1988). Consistent with Justice O’Connor’s reasoning, the Ninth Circuit has held that if the creation of the documents subpoenaed was not compelled, the contents of the documents are not protected by the Fifth Amendment, irrespective of the characterization of those documents. In Re Grand Jury Proceedings on February 4, 1982, 759 F.2d 1418, 1419 (9th Cir.1985). See also In Re Sealed Case, 877 F.2d 83, 84 (D.C.Cir.1989) (in dicta, contents of voluntarily prepared personal records not covered by privilege); United States v. Clark, 847 F.2d 1467, 1468 (10th Cir.1988) (contents of voluntarily prepared tax records not contested); In Re Kave, 760 F.2d 343, 355 (1st Cir.1985) (rejecting content-based Fifth Amendment analysis). In United States v. (Under Seal), 745" }, { "docid": "22984217", "title": "", "text": "Fisher rejected the approach followed in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which fo-cussed on the content of a requested document. Fisher held that the Fifth Amendment applies only to the act of production. The issue is whether the act of producing a document conveys sufficient information to be considered testimonial. The Court said: The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the content of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer’s belief that the papers are those described in the subpoena.... The elements of compulsion are clearly present but the more difficult issues are whether the tacit averment of the taxpayer are both “testimonial” and “incriminating” for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases. Id. 425 U.S. at 410, 96 S.Ct. at 1581. In Fisher the existence, possession and control of the requested documents were not an issue. Production of the documents conveyed no information in and of itself. However, the Court stated that an act of production that did convey information would be testimonial. This approach was followed in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), where the district court held that requiring defendant to produce the business records of a sole proprietorship would force him to admit that the documents existed, that they were in his possession and that they were authentic. The Supreme Court concluded that defendant could not be compelled to produce those records. This case is indistinguishable from Doe. The police knew that the seized luggage contained drugs, but they needed something to link them to Ms. Bengivenga. Baggage stubs alone do not suffice to link a person to a bag. The baggage stubs must be in possession of the suspect to convey" }, { "docid": "8594663", "title": "", "text": "added). The most recent case interpreting that amendment as it applies to a subpoena duces tecum is United States v. Doe, — U.S. -, 104 S.Ct. 1237, 79 L.Ed.2d 552. In Doe, the respondent, the owner of several sole proprietorships, was served with five subpoenas during the course of a grand jury investigation. Respondent sought to quash the subpoenas. The district court granted respondent’s motion to quash, except with respect to records- legally required to be kept by or revealed to a public agency, for example, tax returns and W-2 forms. The court of appeals affirmed the district court while the Supreme Court affirmed in part and reversed in part. In reversing, the Court held that the contents of business records were not privileged, because their creation was voluntary. — U.S. at ---, 104 S.Ct. at 1241-42, 79 L.Ed.2d at 558-59. Before stating that holding, however, the Court affirmatively noted and restated the language of Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). With regard to the notation, the Court said: “[a]s we noted in Fisher, the Fifth Amendment only protects the person asserting the privilege from compelled self-incrimination. Id., — at -, 104 S.Ct. at 1241, 79 L.Ed.2d at 559 (citing to Fisher, 425 U.S. at 396, 96 S.Ct. at 1573) (emphasis in original). With regard to its restatement, the Court said: “[a subpoena duces tecum] ‘does not compel oral testimony; nor would it ordinarily compel ... [a restatement, repetition, or affirmation of] the truth of the contents of the documents sought.’ ” Id., — at -, 104 S.Ct. at 1241, 79 L.Ed.2d at 559 (quoting Fisher, 425 U.S. at 409, 96 S.Ct. at 1580). In affirmation, the Court held that the act of producing the records was privileged, because the act of production involves a risk of “ ‘substantial and real’ ” testimonial self-incrimination. Id., — at -, 104 S.Ct. at 1243 n. 13, 79 L.Ed.2d at 561 n. 13. Before stating that holding, however, the Court recognized that the act of production could require Fifth Amendment protection, even when the content" } ]

[ { "docid": "22707787", "title": "", "text": "Past Persecution At the outset, it is useful to catalogue what is not at issue: (1) A husband may apply for asylum as a derivative beneficiary of his wife’s application. 8 U.S.C. § 1158(b)(3). (2) Rape is the kind of infliction of suffering or harm that may support a finding of past persecution, provided that the applicant demonstrates that the rape was on account of a statutorily protected ground, such as an imputed political opinion. Lopez-Galarza v. INS, 99 F.3d 954, 958-59 (9th Cir.1996). (3) Petitioners bear the burden of establishing their eligibility for asylum; here, they bear the burden of establishing that the rape was “on account of’ an imputed political opinion. 8 C.F.R. § 208.13(a). (4) Felicitas testified that the rapists were Marxist guerrillas. The IJ questioned the basis for that testimony, but ultimately resolved the case on another ground. For purposes of review, we accept Felicitas’ assertion that the rapists were guerrillas. (5) The IJ must consider evidence contained in Felicitas’ application for asylum. Testimony is not required; an applicant may rest on her application, if she swears at the hearing that the contents of the application are true. Grava v. INS, 205 F.3d 1177, 1180 (9th Cir.2000). (6) Asylum generally is not available to victims of civil strife, unless they are singled out on account of a protected ground. To put it another way, “persecution on account of political opinion ... can[not] be inferred merely from acts of random violence by members of a village or political subdivision against their neighbors who may or may not have divergent ... political views;” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). What is at issue is a narrow question: Whether, considering the whole record, the IJ’s finding that the evidence failed to establish a nexus between the rape and a protected ground is supported by substantial evidence. We answer that question “yes,” for two reasons. (a) There is no evidence that the rapists imputed a political opinion to Felicitas. Petitioners assert that the rape of Feli-citas and her daughter was “on account of’ a political opinion that" } ]

[ { "docid": "19334220", "title": "", "text": "that he was persecuted because he belonged to a particular social group; it only addressed the merits of Muradin’s imputed political opinion claim. In light of the IJ’s failure to address this argument, and the BIA’s reliance on the IJ’s order, we remand for additional investigation or explanation. See Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir.2005) (remanding for failure to address one of petitioner’s arguments); Sagaydak v. Gonzales, 405 F.3d 1035, 1040-41 (9th Cir.2005) (remanding for failure to address one of applicant’s arguments); see also Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir.2000) (noting that this court “cannot affirm the BIA on a ground upon which it did not rely”). With respect to imputed political opinion, we agree with the IJ that the record contains no evidence that a political opinion has been imputed to Muradin by virtue of his mother’s membership in an organization supporting the rights of soldiers. Therefore, we affirm the denial of asylum and with-holding of removal because Mu-radin has failed to show persecution on account of an imputed political opinion. Convention Against Torture Next, Muradin argues that substantial evidence does not support the BIA’s determination that he is ineligible for relief under CAT. CAT requires the petitioner to establish that it is more likely than not that he would be tortured with the acquiescence of the Armenian government if he returned to Armenia. See 8 C.F.R. §§ 208.16(c)(2), 208.18; Zheng, 332 F.3d at 1194. Petitioner need not show that he will be tortured on account of a protected ground. Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001). The BIA reversed the IJ’s decision regarding CAT relief because it determined Muradin had not been tortured while in the military and evidence in the record of the conditions in Armenia did not support the conclusion that Muradin would more likely than not be tortured upon his return. The record, however, compels a contrary conclusion. Where, as here, the IJ expressly finds the petitioner’s testimony to be credible, and where the BIA makes no country finding, we accept as true the petitioner’s" }, { "docid": "23429143", "title": "", "text": "mind might accept as adequate to support a conclusion.” Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001) (internal quotation marks omitted). We also “require some indication that the IJ considered material evidence supporting a petitioner’s claim.” Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005); see also Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) (“[W]e cannot assume that the BIA considered factors that it failed to mention in its decision.” (internal quotation marks omitted)). It is not our role, moreover, to assume factual findings supporting denial “on the basis of record evidence not relied on by the BIA.” Jin Shui Qiu, 329 F.3d at 149. Applying these principles here, we review de novo the IJ’s interpretation of the legal term “particular social group”; assume without deciding that the IJ’s interpretation might be entitled to Skidmore deference based on its inherent persuasiveness; accord Chevron deference to relevant BIA precedent; and review under the “substantial evidence” standard the IJ’s findings of fact as to whether Gao could have sought government protection and/or relocated within China. II. The Governing Law To establish eligibility for the discretionary relief of asylum, a petitioner must show that she has suffered past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” or that she has a well-founded fear of future persecution on these grounds. See 8 U.S.C. § 1101(a)(42). “An alien’s fear may be well-founded even if there is only a slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94- L.Ed.2d 434 (1987)). If an applicant satisfies the higher burden of demonstrating that such persecution is more likely than not, she is automatically entitled to withholding of removal under 8 U.S.C. § 1231(b)(3). See Diallo, 232 F.3d at 284-85. An applicant is also entitled to CAT relief if she establishes that it is more likely than not that she would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(e)(2); see Ramsameachire v. Ashcroft," }, { "docid": "3498982", "title": "", "text": "are subject to de novo review. See Maldonado-Cruz v. U.S. Department of Immigration and Naturalization, 883 F.2d 788, 791 (9th Cir.1989). The statute governing asylum, 8 U.S.C. § 1158(b), states that an alien can be granted asylum, in the discretion of the Attorney General, if the alien is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A), namely, someone who is unable or unwilling to return to his home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Attorney General does not resist review of the Board’s determination as to whether an applicant meets any of the five enumerated grounds. To qualify for asylum, the applicant must show that he actually fears persecution (a subjective issue), and that there is a “reasonable possibility” that persecution would actually occur (an objective issue), Ravin-dran, 976 F.2d at 758, but no more than this is required. See Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. If the applicant has shown no personal threat against him, he must show that there is a practice of persecution against a group or category of persons within the five enumerated grounds, and that he is identified with that group. See 8 C.F.R. § 208.13(b)(2)(i); Meguenine v. INS, 139 F.3d 25, 28 (1st Cir.1998). It is not persecution for a government to require military service of its citizens. See Krastev v. INS, 101 F.3d 1213, 1217 (7th Cir.1996); see also Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1st Cir.1990). However, a person may qualify as a refugee if he is singled out for service became he is a member of an enumerated group or if—when he refuses service—he is subject to disproportionate punishment on account of his group membership. See M.A. [ AXXXXXXXX ] v. INS, 899 F.2d 304, 312 (4th Cir.1990) (en banc); Matter of R—R—, 20 I. & N. Dec. 547, 551 (1992). In this case, Greek law subjects all men to military service. There is no evidence that the Greek government has threatened Foroglou with military service" }, { "docid": "22784755", "title": "", "text": "must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)®. Contrary to the government’s argument, we have jurisdiction to review an agency’s changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (holding that the Real ID Act restored jurisdiction over the “changed circumstances” question because this question involved the application of a statutory standard to undisputed facts). Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir.2007) (en banc) (“Lolong II”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ’s changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners’ argument fails because both Sael and Lo-long were decided after petitioners filed their asylum applications. Accordingly, those decisions could not have tolled the one-year statute of limitations. We affirm the IJ’s denial of petitioners’ asylum application as untimely. IV. WITHHOLDING OF REMOVAL Unlike asylum, there is no statutory time limit for filing a withholding application. Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004) (citing 8 U.S.C. § 1231(b)(3)). Accordingly, petitioners’ application for withholding of removal is not time-barred. Petitioners argue that the BIA erred by failing to apply disfavored group analysis to their withholding claim because Christians are a disfavored group in Indonesia. We agree and remand to the BIA to use the disfavored group analysis in determining whether petitioners are entitled to withholding of removal. A. Christians Are a Disfavored Group in Indonesia A “disfavored group” is “a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted” but who are “not threatened by a" }, { "docid": "22341704", "title": "", "text": "the majority opinion recognizes, Majority Opinion, p. 1188, Ahmed’s uncle was suspected of collaborating with Pakistan during the Bangladesh war for independence from Pakistan. This fact itself militates against a compelled finding of persecution. We have consistently held that confrontations, even deadly ones, that occur in the course of civil war or insurgency are, unfortunately, expected consequences of civil conflict rather than persecution. See Miranda Alvarado v. Gonzales, 449 F.3d 915, 931 (9th Cir.2006), as amended (“[Ijnjury inflicted by opposing political or other groups on each other during a civil conflict will not necessarily equate to persecution on account of one of the ... protected grounds.”); Ndom v. Ashcroft, 384 F.3d 743, 752-53 (9th Cir.2004) (noting that “the existence of civil war ... by itself, does not establish eligibility for asylum ...” and this court has “found no persecution despite civil strife” when an applicant fails to establish “that his or her persecutor was motivated by one of the five statutory grounds”) (citations omitted). Ahmed and his brother were beaten when they interceded on behalf of their uncle. Despite their good intentions, they were unable to “save” their uncle from the soldiers. However, Ahmed and his brother were beaten, not because of their politi cal views or their ethnicity, but because they interfered with the soldier’s punishment of a suspected enemy collaborator. Although we might abhor the atrocities of war, that abhorrence does not translate into a compelled finding of persecution. See Miranda Alvarado, 449 F.3d at 932 (citing with approval language of a BIA decision holding that harm resulting “incidentally from behavior directed at another goal, the overthrow of a government or, alternatively, the defense of that government against an opponent, is not persecution”) (citation omitted). The IJ’s conclusion that these events did not rise to the level of persecution is supported by substantial evidence as discussed above. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006) (recognizing that we review for substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation omitted). The IJ’s finding is also bolstered" }, { "docid": "22208923", "title": "", "text": "in the United States as well” (emphasis added). The IJ failed to cite to any Chinese law Li had violated. In addition to rejecting the possibility that Li was persecuted on account of his political opinion, the IJ also found Li had failed to demonstrate that he was persecuted on account of religion or any other protected ground. The IJ therefore exercised his “discretion to not grant asylum to [Li].” The IJ also rejected Li’s application for withholding of removal and protection under CAT. The BIA affirmed without opinion. Li timely petitions for review. III. STANDARD OF REVIEW When the BIA adopts the reasoning of the IJ, we review the decision of the IJ. See Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995) (“Because the BIA did not independently review [the applicant’s] case and instead adopted the IJ’s opinion, we review the decision of the IJ.”); 8 C.F.R. § 1003.1(e)(4). We review the IJ’s determination that an applicant has not established asylum eligibility for substantial evidence, see Tang v. Gonzales, 489 F.3d 987, 989-90 (9th Cir.2007), upholding a determination when it is “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ ” Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To reverse a finding “we must find that the evidence not only supports that conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. IV. DISCUSSION The Attorney General may, in his discretion, grant asylum to applicants determined to be refugees within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act. 8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1). An applicant qualifies as a refugee when the “applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). An applicant may establish a “well-founded fear of future persecution” in" }, { "docid": "22956665", "title": "", "text": "the Mexican government has made successful efforts to promote tolerance of homosexuals. The BIA dismissed Castro’s appeal. The Board concluded that Castro had failed to establish eligibility for asylum because he had not shown that the Mexican government had been unwilling or unable to protect him from his abusers, or that homosexuals and HIV-positive indi viduals are subjected to officially-sanctioned discrimination in Mexico. The Board noted that Castro did not report the sexual abuse to the authorities and that he failed to provide a compelling reason as to why seeking state protection would have been futile. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1057-58 (9th Cir.2006). The Board further concluded that Castro had not demonstrated that he would be unable to secure treatment for HIV in Mexico, or that lack of access to HIV treatment was a problem experienced only by homosexuals. Since Castro failed to meet his burden of proof for asylum, he also failed to establish his eligibility for withholding of removal. The Board also denied his CAT claim, holding that Castro did not demonstrate that it was more likely than not that he would be tortured in Mexico. II. Discussion We review the BIA’s construction and application of the law de novo. See Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). We must uphold the BIA’s factual findings if supported by “reasonable, substantial, and probative evidence on the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Our review is “confined to the BIA’s decision and the bases upon which the BIA relied.” Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir.2000). A. Past persecution To be eligible for asylum, an alien must demonstrate that he is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or a political opinion. 8 U.S.C. § 1101(a)(42)(A). Homosexual men in Mexico can constitute a social group for the purpose of an asylum claim. See Boer-Sedano v. Gonzales, 418 F.3d 1082," }, { "docid": "22720514", "title": "", "text": "We have held that an applicant who is specifically targeted for persecution has a well-founded fear. See, e.g., Melkonian, 320 F.3d at 1068-69. Finally, Malty has introduced evidence regarding recent, widespread persecution of Coptic Christians that supports his claim. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir.2003) (explaining that the level of individualized targeting that a petitioner must show is decreased when he is a member of a mistreated group). A well-founded fear does not require proof that persecution is more likely than not; even a ten percent chance of persecution may establish a well-founded fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). There is no question that Malty has demonstrated a reasonable likelihood of meeting this standard. Therefore, Malty has stated a pri-ma facie case for asylum based on changed circumstances in his country of nationality. III. Conclusion We grant the petition for review and remand to the BIA with instructions to reopen. REVERSED and REMANDED. . The BIA declined to exercise its discretionary authority to grant the motion sua sponte. We do “not have jurisdiction to review the BIA's refusal to reopen deportation proceedings sua sponte.\" Ekimian v. INS, 303 F.3d 1153, 1160 (9th Cir.2002). Although the BIA discusses some of its reasons for its decision not to reopen when explaining its refusal to grant a sua sponte motion, we treat all of its reasons as equally pertinent to its denial of Malty’s motion to reopen, which it denied essentially on the ground that he failed to demonstrate changed country circumstances. . Although the statute and regulation refer to “affidavits,” we have treated affidavits and declarations interchangeably for purposes of motions to reopen, see, e.g., Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.2002), as well for purposes of BIA proceedings generally. See, e.g., Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1118 (9th Cir.2004); Vera-Villegas v. INS, 330 F.3d 1222, 1226 (9th Cir.2003); Gafoor v. INS, 231 F.3d 645, 654" }, { "docid": "22664595", "title": "", "text": "that he possesses a well-founded fear of future persecution. DISCUSSION To establish eligibility for asylum, a petitioner must show that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of future persecution on account of one of these grounds. See 8 U.S.C. § 1101(a)(42); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam). “An alien’s fear may be well-founded even if there is only a slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000). “Once an applicant establishes eligibility for asylum, however, the decision whether to grant a particular application is ... within the discretion of the Attorney General.” Id. (internal quotation marks omitted). To establish entitlement to withholding of removal, a mandatory form of relief, an applicant must satisfy the higher burden of demonstrating that it is more likely than not that Ms life or freedom would be threatened on account of one of the five bases for asylum if he is deported. See 8 U.S.C. § 1281(b)(3); Diallo, 282 F.3d at 284-85. We review the factual findings of the immigration court for “substantial evidence.” See Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). Under this standard, the immigration court’s factual findings will be upheld if supported by “reasonable, substantial and probative evidence in the record.” Id. “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001) (internal quotation marks omitted). Questions of law regarding “ ‘what evidence will suffice to carry any asylum applicant’s burden of proof ” are reviewed de novo. See Islami, 412 F.3d at 396 (quoting Qiu v. Ashcroft, 329 F.3d 140, 146 n. 2 (2d Cir.2003)). “[I]f the IJ or BIA were to use an ‘inappropriately stringent standard when evaluating an applicant’s testimony,’ we would treat that as a legal, rather than factual error.” Id. (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307" }, { "docid": "22088393", "title": "", "text": "his friends at the radio station that he ever gave any kind of speech or talk on the radio”). The IJ denied Karapetyan relief, in part because he did not produce these corroborating documents. Because the IJ made a finding that Karapetyan testified credibly, the IJ’s failure to credit Karapetyan’s testimony was improper. We have repeatedly held that, when an applicant has been found to testify credibly, the facts are deemed to be true, and no further corroboration is required. See, e.g., Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000) (“[W]e must accept testimony as true in the absence of an explicit adverse credibility finding.”); Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000) (reaffirming that “corroboration of credible testimony is not necessary”); Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 855 (9th Cir.2004). In fact, the IJ acknowledged, “[t]he [petitioner’s] testimony alone can establish that he is a refugee.” Because corroborating evidence is not necessary in the face of a credibility finding, we accept Karapetyan’s testimony as true. II. THE IJ’S CONCLUSION THAT KARAPETYAN WAS INELIGIBLE FOR ASYLUM RELIEF IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE Accepting Karapetyan’s testimony as true, we must next address whether substantial evidence supported the IJ’s finding that Karapetyan’s testimony was insufficient to warrant asylum relief. We find that the harm suffered by Karapetyan compels a finding of past persecution and, accordingly, we remand the case to the BIA to exercise its discretion in deciding whether to grant asylum. This court reviews for substantial evidence the IJ’s decision that an applicant has failed to establish past persecution or a well-founded fear of persecution. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To obtain reversal under this standard, the petitioner must demonstrate that the evidence presented was such that a reasonable fact finder would be compelled to conclude that the requisite past persecution, or well-founded fear of future persecution, existed. Id. To be eligible for a grant of asylum, Karapetyan must show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee is one who is “unable or unwilling to" }, { "docid": "22761562", "title": "", "text": "their reply, Petitioners argue that members of their proposed social group are “easily identified,” but they do not address at all the issue of the breadth of the proposed group. Petitioners’ Reply, pp. 18-19. As for their claim for withholding of removal, to qualify Petitioners must prove it is “more likely than not” that they will be persecuted on account of a statutorily-protected ground. See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). As we have already held that the BIA did not err in holding that the particular social group identified by the Petitioners is insufficient to merit asylum protection, we also hold that Petitioners fail to present a prima facie case for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (holding that an applicant who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal). Accordingly, Petitioners’ motion to reopen did not establish prima facie eligibility for asylum or withholding of removal. Finally, with regard to their application for protection under the CAT, Petitioners must establish that it is more likely than not that they would be tortured if returned to Mexico. 8 C.F.R. § 208.16(c)(2); Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir.2009). Petitioners’ generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient to meet this standard. Thus, Petitioners also failed to establish prima facie eligibility for protection under the CAT. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir.2005). In conclusion, Petitioners failed to demonstrate that reopening their case was warranted. The BIA did not abuse its discretion by so holding. Respondent’s motion for summary disposition is granted. IV. The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status. All other pending motions are denied as moot. The temporary stay of removal shall continue in effect until issuance of the mandate. PETITION FOR REVIEW DENIED. . Respondent argues in the motion for summary disposition that the petition for review should be" }, { "docid": "23071501", "title": "", "text": "determining that the IJ did not disbelieve the material facts testified to by Ratnam regarding his persecution claim and that he should be considered a credible witness. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996) (explaining that we review a credibility determination by the BIA for substantial evidence and will uphold the determination unless the evidence presented compels a reasonable factfinder to reach a contrary result). An otherwise excludable alien claiming past persecution or fear of future persecution has two main avenues of relief: asylum and withholding of deportation. Pursuant to 8 U.S.C. § 1158(b), the Attorney General may in her discretion grant asylum to an alien present in the United States who is a “refugee,” defined as an alien who is unable or unwilling to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Refugee status may derive from persecution on account of a political opinion imputed to the alien by the persecutor. See Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997). Moreover, while a persecutor may well be moved by multiple motives against an alien claiming refugee status, it is sufficient that one of the motives be “on account of’ one of the protected categories. See Rodriguez-Roman v. INS, 98 F.3d 416, 430 n. 23 (9th Cir.1996). Establishing a well-founded fear of persecution sufficient to qualify for asylum requires a “subjectively genuine” and “objectively reasonable” fear of persecution, Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir.1991), but does not require proof that persecution is more likely than not, INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.”). Either past persecution or a well-founded fear of future persecution provides eligibility for a discretionary grant of asylum. An alien who establishes past persecution is presumed to have a well-founded fear" }, { "docid": "22607342", "title": "", "text": "on that ground. In the alternative,, he denied her application for asylum because she did not demonstrate a nexus between the mistreatment she suffered and a protected ground. The IJ found algo that the social group that Rosa-lina claimed to be a member of for refugee purposes was too broad. He further found that it was possible for Rosalina to relocate to Manila. He denied also her applications for withholding and CAT protection. The BIA reversed the adverse credibility finding, but otherwise affirmed the IJ. It found also that the IJ did not commit a due process violation when he denied Ro-salina’s motion to permit her relatives to testify by telephone. II STANDARD OF REVIEW We review findings of fact for substantial evidence. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004) (en banc). To reverse the BIA’s finding that Rosalina did not demonstrate a nexus between the harm she suffered and a protected ground, the evidence must “not only support [] that conclusion, but compel [ ] it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Denial of relief under CAT is reviewed for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). Ill DISCUSSION A. Past Persecution To be eligible for asylum, Rosalina must show that she is unwilling or unable to return to her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Once eligibility is established, it is within the Attorney General’s discretion to grant asylum.” Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir.1996). As a preliminary matter, the rape and physical abuse inflicted on Rosalina support a finding of past persecution under 8 U.S.C. § 1101(a)(42)(A). See id. at 959. Consequently, the issue before us is whether the record compels a conclusion that the NPA subjected Rosalina to past persecution on account of a protected ground. We hold that the record compels a conclusion that Rosalina was persecuted on account of an" }, { "docid": "22722317", "title": "", "text": "an inability to establish eligibility for asylum necessarily precludes ability to establish eligibility for withholding of deportation. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). However, unlike the Attorney General’s discretion with regard to an application for asylum, if the showing for withholding of deportation is made, no discretion lies with the Attorney General; the application for withholding must be granted. Id. On appeal from a decision of the BIA, we must uphold the BIA’s determination if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4) (repealed 1996); see Diallo, 232 F.3d at 287. To reverse, we must conclude that no reasonable factfinder could have failed to find that Chen established past persecution or a well-founded fear of future persecution. See Diallo, 232 F.3d at 287. And where the agency’s determination is based on an inaccurate perception of the record, omitting potentially significant facts, we may remand for reconsideration or rehearing, see AlvaradoCarillo v. INS, .251 F.3d 44, 50 (2d Cir. 2001), or, if circumstances warrant it, a new hearing, see Qiu v. Ashcroft, 329 F.3d 140 (2d Cir.2003). II. The Decisions of the IJ and the BIA What is troubling about this case is the undisputed failure by the IJ and the BIA (jointly and severally, the “immigration court”) to acknowledge, much less evaluate, Chen’s testimony that he had been beaten. At his deportation hearing, Chen specifically stated that the police “used their hands to beat [him].” A review of the BIA’s decision reveals no consideration of that testimony. Indeed, not only did the BIA, in denying Chen’s application, fail to mention Chen’s testimony on being beaten, but the BIA also stated— explicitly but erroneously — that Chen had not testified to being beaten. The IJ likewise failed to mention Chen’s testimony on being beaten, acknowledging, as did the BIA, only Chen’s claim that he had been interrogated. In Alvarado-Carillo v. INS, 251 F.3d 44, 50 (2d Cir.2001), we granted a petition for review, vacated the BIA’s decision, and remanded where the decision, denying an application" }, { "docid": "22175176", "title": "", "text": "denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons’ request for voluntary departure in lieu of removal, designating Somalia as the country of removal. On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review. II. Standard of Review We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the \"Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum.\" Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As the BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(a), we review the IJ's decision as the final agency determination. Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir.2004). \"We accept the Petitioner['s] testimony as true when, as here, the IJ found [her] to be credible.\" Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). III. Discussion A. The Asylum Claim To establish eligibility for asylum, the applicant must first show that she qualifies as a refugee. Immigration and Nationality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the Attorney General discretion to grant asylum to any alien deemed a “refugee”). A refugee is one “who is unable or unwilling to return to ... [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Ali has met the statutory eligibility for asylum. 1. Ali Suffered Past Persecution on Account of Political Opinion and Membership in a Particular Social Group Although the USC militia was not the ruling" }, { "docid": "22175177", "title": "", "text": "we review the IJ's decision as the final agency determination. Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir.2004). \"We accept the Petitioner['s] testimony as true when, as here, the IJ found [her] to be credible.\" Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). III. Discussion A. The Asylum Claim To establish eligibility for asylum, the applicant must first show that she qualifies as a refugee. Immigration and Nationality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the Attorney General discretion to grant asylum to any alien deemed a “refugee”). A refugee is one “who is unable or unwilling to return to ... [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Ali has met the statutory eligibility for asylum. 1. Ali Suffered Past Persecution on Account of Political Opinion and Membership in a Particular Social Group Although the USC militia was not the ruling government in Somalia, its actions against Ali can appropriately be considered persecution. “Persecution need not be directly at the hands of the government; private individuals that the government is unable or unwilling to control can persecute someone.” See Singh, 134 F.3d at 967 n. 9. We have also held that groups seeking to overthrow a government can be non-state agents of persecution for asylum purposes. Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir.1988). The USC was involved in the overthrow of the Siad Barre administration, and therefore, can be considered a non-state actor capable of persecution. The IJ found that Ali was not persecuted on account of one of the five statutory grounds. We disagree. The persecution Ali suffered was clearly on account of the political opinion her persecutors believed she held and on account of her membership in a particular social group, her clan. We have repeatedly held that asylum applicants bear neither the unreasonable burden of establishing the exact motives of their persecutors nor the burden of showing that their persecutors were" }, { "docid": "23184776", "title": "", "text": "a “substantial evidence” standard. “The [IJ’s] factual determination that [an alien] is removable and not entitled to asylum must be upheld if it is supported by substantial evidence.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.2001). “[A] denial of asylum may be reversed only if the evidence presented by the applicant is so powerful that a reasonable factfinder would have to conclude the requisite fear of persecution exists.” Id. To be eligible for asylum, the applicant bears the burden of proving statutory “refugee” status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the alien must, with specific and credible evidence, establish (1) past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; or (2) a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 C.F.R. § 208.13(b). An alien may establish past persecution or a well-founded fear of future persecution under a theory of imputed political opinion where he shows a political opinion was correctly or incorrectly attributed to him and he was persecuted because of that opinion. See Al Najjar, 257 F.3d at 1289. Fear of prosecution under fairly administered laws, on the other hand, does not ordinarily entitle an alien to asylum or withholding of removal. See, e.g., Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir.2001) (citing Janusiak v. INS, 947 F.2d 46 (3d Cir.1991)). If, however, the alien shows the prosecution is based on a statutorily-protected ground, and if the punishment under that law is sufficiently extreme to constitute persecution, the law may provide the basis for asylum or withholding of removal even if the law is generally applicable. See Chang v. INS, 119 F.3d 1055, 1060-61 (3d Cir.1997); Abedini v. INS, 971 F.2d 188, 191-92 (9th Cir.1992); Behzadpour v. United States, 946 F.2d 1351, 1353 (8th Cir.1991). Scheerer relies on two theories to argue the IJ erred in holding he failed to establish statutory “refugee” status. First, characterizing his report as purely scientific, historical, and factual, Scheerer contends the German government ascribed an anti-Semitic ideology to" }, { "docid": "23030346", "title": "", "text": "OPINION PER CURIAM: Herberth Noel Ayala, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s denial of his applications for asylum, withholding of removal and protection under the Convention Against Torture. He alleges that, during his past service as a military officer, he investigated drug crimes, and that after he was discharged he was attacked and threatened by drug dealers he had personally arrested. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. We review de novo questions of law, including whether a group constitutes a “particular social group” under the Immigration and Nationality Act (INA). See Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir.2010). We examine the BIA’s factual findings, including whether a petitioner was persecuted on account of his membership in a “particular social group,” under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Santos-Lemus v. Mukasey, 542 F.3d 738, 742-43 (9th Cir.2008). To establish eligibility for asylum, an applicant must demonstrate that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(l)(B)(i). In this case, Ayala claims past persecution and a fear of future persecution on account of his membership in a particular social group of former military officers who suffer reprisals based on their prior prosecution of wrongdoers. Because Ayala was a former officer when the relevant incidents took place, he is not precluded from establishing a cognizable social group under the INA. Although in Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991), we held “that the military is not a social group qualifying its servicemen or former servicemen for asylum eligibility,” we later recognized that former officers may be members of a cognizable social group. See Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir.2000) (“Persons who are persecuted because of their status as a former police or military officer, for example," }, { "docid": "19334219", "title": "", "text": "must demonstrate that evidence in the record compels reversal. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001). Asylum Muradin first argues that the IJ erred in finding him ineligible for asylum and withholding of removal. To qualify for asylum, an alien must show he is a “refugee” by providing evidence 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). Muradin asserts that he was persecuted either on account of his membership in a particular social group, specifically former soldiers, or because of imputed political opinion. In affirming the IJ’s denial of asylum and withholding of removal, the BIA stated, “we agree with the Immigration Judge that the harm the respondent testified he suffered and the fears in the future has not been adequately established to be on account of actual or imputed political opinion, membership in a particular social group, or any other ground protected under the Act.” The IJ, however, did not address Muradin’s claim that he was persecuted because he belonged to a particular social group; it only addressed the merits of Muradin’s imputed political opinion claim. In light of the IJ’s failure to address this argument, and the BIA’s reliance on the IJ’s order, we remand for additional investigation or explanation. See Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir.2005) (remanding for failure to address one of petitioner’s arguments); Sagaydak v. Gonzales, 405 F.3d 1035, 1040-41 (9th Cir.2005) (remanding for failure to address one of applicant’s arguments); see also Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir.2000) (noting that this court “cannot affirm the BIA on a ground upon which it did not rely”). With respect to imputed political opinion, we agree with the IJ that the record contains no evidence that a political opinion has been imputed to Muradin by virtue of his mother’s membership in an organization supporting the rights of soldiers. Therefore, we affirm the denial of asylum and with-holding of removal because Mu-radin has failed to show persecution on account" }, { "docid": "22727927", "title": "", "text": "of the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1101(a)(42)(A). The Attorney General has the discretion to grant asylum to aliens who qualify as refugees. 8 U.S.C. § 1158(b)(1). The INA defines a “refugee” as “any person 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. § 1101(a)(42)(A). To establish eligibility for withholding of removal, an applicant must meet “a more stringent” standard of proof than is required for asylum. Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000). The applicant must establish a “ ‘clear probability’ that he would be persecuted were he to be deported to his home country.” Id. The applicant must prove “it is more likely than not that [he or she] will be persecuted on account of a statutorily-protected ground.” Id. (internal quotation marks omitted). In determining whether an applicant was subjected to past persecution, we review the record for substantial evidence. Mendez-Gutietrez v. Ashcroft, 340 F.3d 865, 869 n. 6 (9th Cir.2003) (stating that this court “must affirm the BIA’s finding on eligibility for asylum if it is supported by substantial evidence”). Having found that the IJ’s determination was not supported by substantial evidence, we accept Mr. Guo’s testimony as true. Chen v. INS, 266 F.3d 1094, 1101 (9th Cir.2001), vacated on other grounds by INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); see also Wang, 341 F.3d at 1023 (accepting asylum applicant’s testimony as true after determining that the IJ’s adverse credibility finding was not supported by substantial evidence); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.2003) (declining to remand the case for further investigation of credibility because “[t]he INS, having lost the appeal, should not have repeated opportunities to show that[the applicant] is not credible any more than [the applicant], had he lost, should have an opportunity for remand and further proceedings to establish his credibility”). We look at the totality of the" } ]

[ { "docid": "22165871", "title": "", "text": "... needed to prove likely confusion will vary with the difference in the goods ... of the parties. Where the goods ... are directly competitive, the degree of similarity required to prove a likelihood of confusion is less than in the case of dissimilar products.” 3 McCarthy, supra, § 23:20.1. The district court made no findings as to the degree of similarity of the ADVICOR and ALTOCOR marks; it merely concluded that this factor does not favor Kos. The facts predicate to this analysis are manifest and undisputed. The facial similarity of the marks is apparent “on their face.” Both are seven-letter, three-syllable words that begin and end with the same letters and the same sounds. The marks are also similar in that both are “coined word[s], not found even in approximation in the English or any other familiar language.” Telechron, Inc. v. Telicon Corp., 198 F.2d 903, 905 (3d Cir.1952). “Fanciful marks are ... given an expansive scope of judicial protection ... as to more variations of format.” 2 McCarthy, supra, § 11:6. Two names that look and sound similar will naturally seem even more similar where there are no differences in meaning to distinguish them. Nor can the similarity of coined marks be explained by, or ameliorated by virtue of, any relationship between the marks and the products identified. See, e.g., Telechron, 198 F.2d at 909 (Defendant “cannot claim that he is exercising the normal privilege of using ordinary language ... [in] a case of a first coined word and a second coined word resembling it.”); Lambert Pharmacal Co. v. Bolton Chem. Corp., 219 F. 325, 326 (S.D.N.Y.1915) (Hand, J.) (One who has “adopt[ed a] ... trade name, arbitrary in character, ... has the right to insist that others in making up their arbitrary names should so certainly keep away from his customers as to raise no question.”). Andrx would differentiate the marks by distinguishing what it deems unimportant features (namely, “the first letter ‘A’ and the suffix ‘COR’ ”) from those that are “salient” (the “first syllables”). Appellees’ Br. at 19-20. Andrx argues that the “first syllables" } ]

[ { "docid": "11148037", "title": "", "text": "to prove fraud so long as the affiant or declarant has an honestly held, good faith belief.” Resorts of Pinehurst, 148 F.3d at 420 (emphasis, citations, and internal ellipses omitted). 1. No Other Person Using the Mark in Commerce Mr. Bertuglia’s first claim of fraud arises out of his contention that Maurag knew, or should have known, that another Doraldo Ristorante Italiano existed at the time it averred under oath that no other person had the right to use the mark in commerce. Mr. Bertuglia bases his allegation on the fact that Maurag’s principal owner, Frankie Alosa, was present in the Williamsburg restaurant in 1999 and 2000 while Mr. Bertuglia and Mr. Messina were in the process of opening a second Doral-do’s in Newport News,. Virginia. Mr. Bertuglia and Mr. Messina ended up selling this Doraldo’s to Gio-Nikki Enterprises, Inc. in 2000. The restaurant' operated under the name “Doraldo Ristorante Itali-ano” pursuant to a license granted in connection with the sale. At some point after Maurag applied for the DORALDO service mark in 2004, the Newport News restaurant changed names and then closed. As a preliminary matter, what Maurag should have known is irrelevant for purposes of trademark cancellation. Mr. Ber-tuglia must prove that Maurag actually knew that the other restaurant was legally using the name Doraldo’s at the time of registration. To this end, Mr. Bertuglia introduced evidence that Mr. Alosa was “around” when the Newport News store was built and then sold, that he was seen speaking with Gio-Nikki’s owners, and that Mr. Alosa was once seen at the Newport News Doraldo’s. The first two pieces of testimony are far from conclusive. Even if true, Mr. Alosa’s presence in the same place at the same time in 2001 as Gio-Nikki’s owners does not necessarily mean he knew that they were operating a restaurant called Doral-do’s in 2004. On the other hand, Mr. Alosa’s actual presence at the Newport News Doraldo’s would cast significant doubt on his later sworn affirmation that no one else was using or had the right to use the mark in commerce. However, the testimony" }, { "docid": "11148033", "title": "", "text": "on the last element of this test, i.e., likelihood of customer confusion. The registered owner of a mark may prevent another’s use of the mark only if that use is “likely to cause confusion, or cause mistake, or to deceive.” 15 U.S.C. § 1114(l)(a). The standard of inquiry is whether the alleged infringing use is “likely to confuse the ordinary consumer as to the source or sponsorship of the goods.” Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.1992). Courts deciding whether there is a likelihood of confusion among the competing uses of the mark must consider seven factors: (1) the strength or distinctiveness of the mark; (2) the similarity of the two marks; (3) the similarity of the goods and services that the marks identify; (4) the similarity of the facilities that the two parties use in their businesses; (5) the similarity of the advertising the two parties use; (6) the defendant’s intent; and (7) actual confusion. Lone Star Steakhouse & Saloon v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.1995); Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984). Each factor is of varying strength and relevance depending upon the case. Lone Star, 43 F.3d at 933. In less legalistic terms, Maurag must prove that the contested advertisements are likely to cause customers to patronize one of Mr. Bertuglia’s restaurants (a) thinking that they are going to Doraldo Ristorante Italiano, or (b) thinking that the Maurag and Bertuglia restaurants are affiliated. A coined mark, such as DOR-ALDO, is presumed inherently strong. See, e.g., Kos Pharms. Inc. v. Andrx Corp., 369 F.3d 700, 713 (3d Cir.2004) (discussing the weight of coined and fanciful marks); 2 McCarthy on Trademarks and Unfair Competition §§ 11:5, 11:8 (4th ed.) (defining “coined mark” and its relative strength as a mark). Moreover, the litigants offer similar goods and services in similar facilities. On the other hand, there was no admissible evidence of actual confusion. Maurag instead asserts that the phrases “former owner of Doraldo’s” or “original owner of Doraldo’s” are inherently confusing. The Court is" }, { "docid": "11148039", "title": "", "text": "placing Mr. Alosa at the Newport News Doraldo’s was lacking in specificity, and thus inconclusive of whether Maurag actually knew that someone else had a legal right to use the mark. Finally, because Mr. Messina did not become a partner in Maurag until after Maurag registered for the mark, any knowledge he had regarding the Newport News Doral-do’s may not be imputed to Maurag at the time of registration. While Maurag probably should have known, and indeed may have known, of the Newport News Doraldo’s when it registered for the trademark, the Court FINDS that Mr. Bertuglia has failed to prove by clear and convincing evidence, Resorts of Pinehurst, 148 F.3d at 420, that Maurag actually intended to deceive the USPTO when it registered for the DORALDO trademark. Were the applicable standard a preponderance of the evidence, the Court might have made a different finding. 2. Exclusive Owner of the Mark Mr. Bertuglia’s second allegation of fraud concerns Maurag’s affirmation that it was the owner of the DORALDO mark. Mr. Bertuglia asserts that Maurag was nothing more than a licensee of the trade name “Doraldo” by virtue of the APA language quoted above. If Mr. Bertuglia is correct, and the APA language simply granted a non-exclusive license, Maurag was not the owner of the mark at the time of registration in 2004. See 3 McCarthy on Trademarks and Unfair Competition § 18:43 (4th ed.) (discussing rights of licensees). Disputed ownership, standing alone, does not necessarily lead to cancellation of a service mark registration. The critical question is whether Maurag had a good faith belief at the time of application for registration that it owned the trade name and service mark DORALDO. Maurag could easily have held such a belief because the assignment language in the APA is arguably ambiguous. The “to be used exclusively at” phrase could be read as “to be used only at,” implying that the seller is creating a location-specific license and reserving to itself the right to use the trade name elsewhere. This construction is bolstered by the fact that the APA does not expressly convey" }, { "docid": "11148032", "title": "", "text": "Mr. Bertuglia owns and operates three restaurants: Tuscany Ristorante Italiano, Foxhunter Grill, and Pelican Cove. Mr. Bertuglia’s new restaurants are in the same general geographic area as Maurag’s two Doraldo’s locations, and some of Mr. Bertuglia’s restaurants serve dishes similar, if not identical, to the dishes served in Maurag’s restaurants. Mr. Bertuglia advertises his restaurants in various local papers and tourism magazines. Many of these advertisements contain some variation of the phrases “former owner of Doraldo’s in Williamsburg” or “original owner of Doral-do.” II. Analysis and Conclusions of Law A. Trademark Infringement To prove trademark infringement under the Lanham Act, a plaintiff must prove that: 1) it owns the trademark; 2) the defendant used the trademark; 3) the use occurred in commerce; 4) the defendant used the trademark in connection with the sale, offering for sale, distribution, or advertising of goods or services; and 5) the defendant used the trademark in a manner likely to confuse customers. 15 U.S.C. § 1114; Lamparello v. Falwell, 420 F.3d 309, 313 (4th Cir.2005). Maurag’s trademark infringement claim fails on the last element of this test, i.e., likelihood of customer confusion. The registered owner of a mark may prevent another’s use of the mark only if that use is “likely to cause confusion, or cause mistake, or to deceive.” 15 U.S.C. § 1114(l)(a). The standard of inquiry is whether the alleged infringing use is “likely to confuse the ordinary consumer as to the source or sponsorship of the goods.” Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.1992). Courts deciding whether there is a likelihood of confusion among the competing uses of the mark must consider seven factors: (1) the strength or distinctiveness of the mark; (2) the similarity of the two marks; (3) the similarity of the goods and services that the marks identify; (4) the similarity of the facilities that the two parties use in their businesses; (5) the similarity of the advertising the two parties use; (6) the defendant’s intent; and (7) actual confusion. Lone Star Steakhouse & Saloon v. Alpha of Va., Inc., 43 F.3d" }, { "docid": "11148031", "title": "", "text": "years after the acquisition, Maurag filed an application with the USPTO to register the service mark DORALDO. As part of that application, Maurag filed a sworn affidavit pursuant to 15 U.S.C. § 1051(a)(3) averring that: 1) Maurag “believes” that it is the owner of the mark being registered; and 2) that “to the best of [Maurag’s] knowledge and belief, no other person has the right to use such mark in commerce.” Id. § 1051(a)(3)(A), (a)(3)(D). Alosa and counsel for Maurag prepared the application and affidavit. On July 19, 2004, the USP-TO allowed the mark DORALDO for publication and registration and issued it on the USPTO’s Principal Register with Registration No. 2,970,717. At some point after the USPTO issued the registration for the mark, Charlie Messina, Mr. Bertuglia’s old business partner, became a partner in Maurag. Maurag has since opened a second Doraldo’s restaurant in Kilmarnock, Virginia. In the years since selling Doraldo Risto-rante Italiano, Mr. Bertuglia organized several different Virginia companies, including defendants Doraldo’s Inc., Foxhun-ter Grill, Inc., and Pelican Cove LLC. Through these companies, Mr. Bertuglia owns and operates three restaurants: Tuscany Ristorante Italiano, Foxhunter Grill, and Pelican Cove. Mr. Bertuglia’s new restaurants are in the same general geographic area as Maurag’s two Doraldo’s locations, and some of Mr. Bertuglia’s restaurants serve dishes similar, if not identical, to the dishes served in Maurag’s restaurants. Mr. Bertuglia advertises his restaurants in various local papers and tourism magazines. Many of these advertisements contain some variation of the phrases “former owner of Doraldo’s in Williamsburg” or “original owner of Doral-do.” II. Analysis and Conclusions of Law A. Trademark Infringement To prove trademark infringement under the Lanham Act, a plaintiff must prove that: 1) it owns the trademark; 2) the defendant used the trademark; 3) the use occurred in commerce; 4) the defendant used the trademark in connection with the sale, offering for sale, distribution, or advertising of goods or services; and 5) the defendant used the trademark in a manner likely to confuse customers. 15 U.S.C. § 1114; Lamparello v. Falwell, 420 F.3d 309, 313 (4th Cir.2005). Maurag’s trademark infringement claim fails" }, { "docid": "11148038", "title": "", "text": "Newport News restaurant changed names and then closed. As a preliminary matter, what Maurag should have known is irrelevant for purposes of trademark cancellation. Mr. Ber-tuglia must prove that Maurag actually knew that the other restaurant was legally using the name Doraldo’s at the time of registration. To this end, Mr. Bertuglia introduced evidence that Mr. Alosa was “around” when the Newport News store was built and then sold, that he was seen speaking with Gio-Nikki’s owners, and that Mr. Alosa was once seen at the Newport News Doraldo’s. The first two pieces of testimony are far from conclusive. Even if true, Mr. Alosa’s presence in the same place at the same time in 2001 as Gio-Nikki’s owners does not necessarily mean he knew that they were operating a restaurant called Doral-do’s in 2004. On the other hand, Mr. Alosa’s actual presence at the Newport News Doraldo’s would cast significant doubt on his later sworn affirmation that no one else was using or had the right to use the mark in commerce. However, the testimony placing Mr. Alosa at the Newport News Doraldo’s was lacking in specificity, and thus inconclusive of whether Maurag actually knew that someone else had a legal right to use the mark. Finally, because Mr. Messina did not become a partner in Maurag until after Maurag registered for the mark, any knowledge he had regarding the Newport News Doral-do’s may not be imputed to Maurag at the time of registration. While Maurag probably should have known, and indeed may have known, of the Newport News Doraldo’s when it registered for the trademark, the Court FINDS that Mr. Bertuglia has failed to prove by clear and convincing evidence, Resorts of Pinehurst, 148 F.3d at 420, that Maurag actually intended to deceive the USPTO when it registered for the DORALDO trademark. Were the applicable standard a preponderance of the evidence, the Court might have made a different finding. 2. Exclusive Owner of the Mark Mr. Bertuglia’s second allegation of fraud concerns Maurag’s affirmation that it was the owner of the DORALDO mark. Mr. Bertuglia asserts that Maurag was" }, { "docid": "17083705", "title": "", "text": "mark is “likely to cause confusion, or to cause mistake, or to deceive” an ordinary consumer. 15 U.S.C. § 1114(1)(a) (2006); Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.1995). In applying this standard, a trademark owner need not demonstrate actual confusion, as likelihood of confusion is the proper standard of analysis. Lone Star, 43 F.3d at 933 (citing Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984)). Seven factors assist the Court’s likelihood of confusion analysis: (1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; and (7) actual confusion. See Pizzeria Uno, 747 F.2d at 1527. These factors are meant to be a guide, not a “rigid formula” of application. Anheuser-Busch, Inc. v. L. & L. Wings, Inc., 962 F.2d 316 (4th Cir.1992) (quoting Murphy v. Provident Mut. Life Ins. Co., 923 F.2d 923, 928 (2d Cir.1990)). In an attempt to raise a genuine issue of material fact, Defendant 416 CF asserts that there is no connection between itself arid the business operating at 416 Constant Friendship Boulevard. Doc. No. 15 at 23. However, under the “Owner Information” section on its application to the PTO filed March ,5, 2012, Defendant listed 416 Constant Friendship Boulevard as its address. Doc. No. 1-8 at 23. The information entered onto the application was authenticated and signed under penalty of perjury pursuant to 15 U.S.C. § 1051. See Doc. No. 192 at 2425. In its supplemental brief, Defendant for the first time states that it abandoned its trademark application upon initial notice of possible conflict with Plaintiffs mark. Doc. No. 28 at 3. But according to its PTO application prosecution history, this claim is without merit. After the PTO issued its initial non-final Office Action on June 18, 2012, Defendant filed a response" }, { "docid": "11148034", "title": "", "text": "922, 933 (4th Cir.1995); Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984). Each factor is of varying strength and relevance depending upon the case. Lone Star, 43 F.3d at 933. In less legalistic terms, Maurag must prove that the contested advertisements are likely to cause customers to patronize one of Mr. Bertuglia’s restaurants (a) thinking that they are going to Doraldo Ristorante Italiano, or (b) thinking that the Maurag and Bertuglia restaurants are affiliated. A coined mark, such as DOR-ALDO, is presumed inherently strong. See, e.g., Kos Pharms. Inc. v. Andrx Corp., 369 F.3d 700, 713 (3d Cir.2004) (discussing the weight of coined and fanciful marks); 2 McCarthy on Trademarks and Unfair Competition §§ 11:5, 11:8 (4th ed.) (defining “coined mark” and its relative strength as a mark). Moreover, the litigants offer similar goods and services in similar facilities. On the other hand, there was no admissible evidence of actual confusion. Maurag instead asserts that the phrases “former owner of Doraldo’s” or “original owner of Doraldo’s” are inherently confusing. The Court is not persuaded that the accused phrases are inherently likely to cause confusion as to the source of the goods or services. The advertisements clearly distinguish between Mr. Bertuglia’s restaurants and Doraldo’s. The use of the words “former” and “original” imply, in this unique situation, that there is no current affiliation and that the goods or services are distinct. In addition, the evidence suggested that Mr. Bertuglia did not use the accused phrases for the purpose of luring customers into his restaurants under false pretenses. Rather, Mr. Bertuglia intended to convey that if a customer liked Doraldo Ristorante Italiano in the past, that customer may also like his new restaurants. The prefatory words “former” and “original” effectively serve as disclaimers that guard against customer confusion, rather than ruses to create confusion. Cf. Sunsport, Inc. v. Barclay Leisure Ltd., 984 F.Supp. 418, 421-22 (E.D.Va.1997) (discussing use of disclaimers to avoid confusion); Yankelovich, Skelly & White, Inc. v. White, Yankelovich, Skelly Consulting Group, Inc., 1989 WL 115848, at *9, 1989 U.S. Dist. LEXIS 11468, at *15 (S.D.N.Y. Sept." }, { "docid": "11148042", "title": "", "text": "of registration. III. Conclusion For the reasons set forth above, the Court FINDS in favor of defendants on Maurag’s trademark infringement claim and DENIES defendant Bertuglia’s petition to cancel Maurag’s trademark. This matter is therefore DISMISSED WITH PREJUDICE. While this action is concluded, the question of who actually has the right to use the DORALDO service mark outside of the Williamsburg location remains unresolved. This issue is better negotiated than litigated. Messrs. Bertuglia and Al-osa are savvy businessmen and accomplished restaurateurs who can reach an understanding while enjoying a fine vintage (whether red, white or rose) in someone’s Italian restaurant. The Clerk is DIRECTED to forward a copy of this Opinion and Order to all counsel of record. IT IS SO ORDERED. . The first element, ownership of the mark, is discussed infra, Part II.B. . The only testimony close to showing actual confusion was inadmissible hearsay from Mr. Alosa that customers had told him that they thought Doraldo's was affiliated with Mr. Ber-tuglia’s restaurants. . A party may make nominative use of another’s mark to identify himself or his past activities. Nominative use is the practice of referring to another’s mark to help describe one's own product or service. Century 21 Real Estate Corp. v. Lendingtree, Inc., 425 F.3d 211, 218 (3d Cir.2005). For example, “Michael Jordan would not [infringe or] dilute the name 'Chicago Bulls’ by referring to himself as a former member of that team.” Playboy Enters., Inc. v. Welles, 279 F.3d 796, 806 (9th Cir.2002). In the Third Circuit, nominative use is an affirmative defense to a prima facie case of likelihood of confusion, similar to the fair use defense. Century 21, 425 F.3d at 221. In the Ninth Circuit, an assertion of nominative use gives rise to a modified likelihood of confusion analysis. Playboy, 279 F.3d at 801. The Court need not choose between the Third Circuit approach and the Ninth Circuit approach due to Mr. Bertuglia’s use of disclaimers. . It is unclear whether Alosa's presence at the restaurant was for purposes of observation and due diligence or whether he was actually working at" }, { "docid": "17083704", "title": "", "text": "incontestable once the mark has been in continuous service for five years subsequent to the date of registration. 15 U.S.C. § 1065 (2006); see also Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 193, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). If the right to use a mark becomes incontestable, the registration then becomes .conclusive evidence of thg mark’s validity and ownership. 15 U.S.C. § 1115(b) (2006). ■ Putt-Putt easily satisfies the first prong of the trademark infringement test. Putt-Putt has used the Puth-Putt mark in interstate commerce since as early as 1955. Doc. No. 12-3 ¶ 3. The PTO issued its first certificate of registration to Putt-Putt in 1958 and Putt-Putt has owned several oth.er federal trademark registrations since that time. Doc. No. 1-4. Thus, Putt-Putt’s exclusive right to use its mark is incontestable and the registration is conclusive evidence of the mark’s validity and ownership. The second prong of the test is likelihood of confusion. The standard for likelihood of confusion is whether the unauthorized use of the mark is “likely to cause confusion, or to cause mistake, or to deceive” an ordinary consumer. 15 U.S.C. § 1114(1)(a) (2006); Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.1995). In applying this standard, a trademark owner need not demonstrate actual confusion, as likelihood of confusion is the proper standard of analysis. Lone Star, 43 F.3d at 933 (citing Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984)). Seven factors assist the Court’s likelihood of confusion analysis: (1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant’s intent; and (7) actual confusion. See Pizzeria Uno, 747 F.2d at 1527. These factors are meant to be a guide, not a “rigid formula” of application. Anheuser-Busch, Inc. v. L." }, { "docid": "20973583", "title": "", "text": "It is undisputed that Microsoft has not chosen Defendants. Even assuming, arguendo, that Defendants were authorized licensees of Microsoft products, “[g]oods [ ] that do not meet the trademark owner’s quality control standards will not be considered genuine goods, and their sale will constitute trademark infringement.” Polymer Technology Corp. v. Mimran, 37 F.3d 74, 78 (2d Cir.1994) (citation omitted). The fact that Defendants are not aware of Microsoft’s licensing provisions only supports the indisputable conclusion that they, nor any of the businesses with which they dealt, are not and were not licensees. 3. Likelihood of Confusion “The hallmark of any trademark infringement claim” is consumer confusion. Polymer Technology Corp., 37 F.3d at 80. In making the likelihood of confusion showing, Microsoft “need not demonstrate actual confusion.” Lone Star Steakhouse & Saloon, 43 F.3d at 933 (citing Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984)). Rather, the likelihood of confusion issue is “an ‘inherently factual’ issue that depends upon the facts and circumstances in each case.” Id. (quoting Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.1992) cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992)). In making the likelihood of confusion issue, the Court must consider seven factors. Mainly, (1) the strength or distinctiveness of the mark; (2) the similarity of the two marks; (3) the similarity of the goods and services that the marks identify; (4) the similarity of the facilities that the two parties use in their businesses; (5) the similarity of the advertising the two parties use; (6) the defendant’s intent; and (7) actual confusion. Pizzeria Uno, 747 F.2d at 1527. Importantly, not all these factors are of equal relevance in every case. Id. Id. Other courts have included similar factors in determining the likelihood of confusion issue. See e.g. Microsoft Corporation v. CMOS Technologies, Inc., 872 F.Supp. 1329, 1335 (D.N.J.1994) (similarity between marks, price and length of time defendant used mark without evidence of actual confusion are also among the myriad of factors for consideration). “[W]hen the trademark owner and the alleged infringer are in" }, { "docid": "11148036", "title": "", "text": "27, 1989) (same). The Court therefore FINDS that Maurag did not meet its burden of proving likelihood of confusion and DISMISSES the trademark infringement claim. B. Cancellation of the Trademark Due to Fraud As noted above, Mr. Bertuglia has petitioned via counterclaim for cancellation or amendment of the DORALDO trademark pursuant to 15 U.S.C. § 1064. To prevail on such a petition, Mr. Bertuglia must prove by clear and convincing evidence that Maurag “knowingly made false, material misrepresentations of fact and intended to deceive the” USPTO in Maurag’s application. Resorts of Pinehurst, Inc. v. Pinehurst Nat'l Corp., 148 F.3d 417, 420 (4th Cir.1998) (citations omitted). As part of the registration process, a trademark registrant must affirm, under oath, that he “believes” himself to be the owner of the mark sought to be registered and that “to the best of his knowledge and belief’ no other person has the right to use the mark in commerce. 15 U.S.C. § 1051(a)(3)(A), (A)(3)(D). “The oath is phrased in terms of a subjective belief, such that it is difficult to prove fraud so long as the affiant or declarant has an honestly held, good faith belief.” Resorts of Pinehurst, 148 F.3d at 420 (emphasis, citations, and internal ellipses omitted). 1. No Other Person Using the Mark in Commerce Mr. Bertuglia’s first claim of fraud arises out of his contention that Maurag knew, or should have known, that another Doraldo Ristorante Italiano existed at the time it averred under oath that no other person had the right to use the mark in commerce. Mr. Bertuglia bases his allegation on the fact that Maurag’s principal owner, Frankie Alosa, was present in the Williamsburg restaurant in 1999 and 2000 while Mr. Bertuglia and Mr. Messina were in the process of opening a second Doral-do’s in Newport News,. Virginia. Mr. Bertuglia and Mr. Messina ended up selling this Doraldo’s to Gio-Nikki Enterprises, Inc. in 2000. The restaurant' operated under the name “Doraldo Ristorante Itali-ano” pursuant to a license granted in connection with the sale. At some point after Maurag applied for the DORALDO service mark in 2004, the" }, { "docid": "11148028", "title": "", "text": "OPINION AND FINAL ORDER WALTER D. KELLEY, JR., District Judge. A bottle of white, a bottle of red Perhaps a bottle of rose instead We’ll get a table near the street In our old familiar place You and I — face to face A bottle of red, a bottle of white It all depends on your appetite I’ll meet you any time you want In our Italian restaurant. -Billy Joel, Scenes From An Italian Restaurant (1977) For many diners in the Williamsburg, Virginia area, Doraldo Ristorante Italiano (“Doraldo’s”) is the old, familiar place about which Billy Joel sings. The restaurant’s excellent reputation attracts customers from substantial distances. The current owner of Doraldo’s — plaintiff Maurag, Inc. — believes the restaurant’s name to be so valuable that it caused the United States Patent and Trademark Office (“USPTO”) to issue a service mark registration protecting it. Maurag brought this infringement action against Doraldo’s founder, defendant Aldo Bertuglia, and three of his corporations that own new restaurants. Maurag objects to Mr. Bertuglia advertising his new restaurants with the tag line “former owner of Doraldo’s in Williamsburg.” Mr. Bertuglia has counterclaimed, alleging that Maurag defrauded the USPTO by registering a mark that was already in use and that it did not own. Based on the evidence introduced by the parties at a bench trial and the application of relevant law, the Court FINDS in favor of defendants on the infringement claim because Maurag did not prove that the advertisements in question are likely to cause customer confusion. The Court further FINDS in favor of Maurag on the counterclaim because Mr. Bertuglia did not prove, by clear and convincing evidence, that Maurag subjectively intended to deceive the USPTO when it registered the disputed mark. I. Findings of Fact Defendant Aldo Bertuglia is a career restaurateur who has owned and operated a number of dining establishments, first in the New York City area and later in the region surrounding Williamsburg, Virginia. While in the New York City area, Mr. Bertuglia combined his wife’s name, Dora, with his first name, Aldo, to create a restaurant named “Doraldo’s.”" }, { "docid": "11148035", "title": "", "text": "not persuaded that the accused phrases are inherently likely to cause confusion as to the source of the goods or services. The advertisements clearly distinguish between Mr. Bertuglia’s restaurants and Doraldo’s. The use of the words “former” and “original” imply, in this unique situation, that there is no current affiliation and that the goods or services are distinct. In addition, the evidence suggested that Mr. Bertuglia did not use the accused phrases for the purpose of luring customers into his restaurants under false pretenses. Rather, Mr. Bertuglia intended to convey that if a customer liked Doraldo Ristorante Italiano in the past, that customer may also like his new restaurants. The prefatory words “former” and “original” effectively serve as disclaimers that guard against customer confusion, rather than ruses to create confusion. Cf. Sunsport, Inc. v. Barclay Leisure Ltd., 984 F.Supp. 418, 421-22 (E.D.Va.1997) (discussing use of disclaimers to avoid confusion); Yankelovich, Skelly & White, Inc. v. White, Yankelovich, Skelly Consulting Group, Inc., 1989 WL 115848, at *9, 1989 U.S. Dist. LEXIS 11468, at *15 (S.D.N.Y. Sept. 27, 1989) (same). The Court therefore FINDS that Maurag did not meet its burden of proving likelihood of confusion and DISMISSES the trademark infringement claim. B. Cancellation of the Trademark Due to Fraud As noted above, Mr. Bertuglia has petitioned via counterclaim for cancellation or amendment of the DORALDO trademark pursuant to 15 U.S.C. § 1064. To prevail on such a petition, Mr. Bertuglia must prove by clear and convincing evidence that Maurag “knowingly made false, material misrepresentations of fact and intended to deceive the” USPTO in Maurag’s application. Resorts of Pinehurst, Inc. v. Pinehurst Nat'l Corp., 148 F.3d 417, 420 (4th Cir.1998) (citations omitted). As part of the registration process, a trademark registrant must affirm, under oath, that he “believes” himself to be the owner of the mark sought to be registered and that “to the best of his knowledge and belief’ no other person has the right to use the mark in commerce. 15 U.S.C. § 1051(a)(3)(A), (A)(3)(D). “The oath is phrased in terms of a subjective belief, such that it is difficult" }, { "docid": "11148040", "title": "", "text": "nothing more than a licensee of the trade name “Doraldo” by virtue of the APA language quoted above. If Mr. Bertuglia is correct, and the APA language simply granted a non-exclusive license, Maurag was not the owner of the mark at the time of registration in 2004. See 3 McCarthy on Trademarks and Unfair Competition § 18:43 (4th ed.) (discussing rights of licensees). Disputed ownership, standing alone, does not necessarily lead to cancellation of a service mark registration. The critical question is whether Maurag had a good faith belief at the time of application for registration that it owned the trade name and service mark DORALDO. Maurag could easily have held such a belief because the assignment language in the APA is arguably ambiguous. The “to be used exclusively at” phrase could be read as “to be used only at,” implying that the seller is creating a location-specific license and reserving to itself the right to use the trade name elsewhere. This construction is bolstered by the fact that the APA does not expressly convey the goodwill associated with the trade name and service mark DORALDO. See generally 3 McCarthy on Trademarks and Unfair Competition § 18:17 (4th ed.) (discussing assignments in gross). On the other hand, the operative language could be read as “to be used exclusively by the buyer at,” implying that the buyer has the sole right to use the mark. This construction is bolstered by the fact that Mr. Bertuglia dissolved Dor-aldo Restaurant Inc. immediately after the sale without making any provision for new ownership of its trade name and service mark assets. This suggests Mr. Bertuglia believed that he had conveyed all right, title, and interest in the assets. The arguable ambiguity in the APA prevents Mr. Bertuglia from proving fraudulent intent solely from the face of the contract, and there was no convincing par-ol evidence regarding the parties’ mutual intent when entering into the transaction. The Court therefore FINDS that Mr. Ber-tuglia has not proved by clear and convincing evidence that Maurag knew it was not the owner of the mark at the time" }, { "docid": "11148030", "title": "", "text": "After moving to Williamsburg, Mr. Ber-tuglia formed a Virginia corporation, Dor-aldo Restaurant, Inc., with a partner named Cologio “Charlie” Messina. The corporation owned and operated Doraldo Ristorante Italiano, commonly known as Doraldo’s, beginning in 1997. In 2001, Francesco “Frankie” Alosa, through his company Maurag, bought the Williamsburg Doraldo Ristorante Italiano from Mr. Bertuglia’s corporation. The sale was documented by an Asset Purchase Agreement (“APA”) (Def.’s Ex. 3). The only documented reference to the trade name “Doraldo’s” appears in the Schedule of Assets conveyed (i.e., Attachment A). The first entry on that list states: The use of the tradename, Doraldo’s, to be used exclusively at 1915 Pocahontas Trail, D-2, Williamsburg, Virginia, including the right to use the telephone number, and the right to use any yellow page advertising that is in place along with any other such advertising. (Def.’s Ex. 3.) Following the sale, Doraldo Restaurant Ine. ceased doing business and filed Articles of Dissolution with the Virginia State Corporation Commission. Maurag has owned and operated Doral-do Ristorante Italiano continually since purchasing it in 2001. Three years after the acquisition, Maurag filed an application with the USPTO to register the service mark DORALDO. As part of that application, Maurag filed a sworn affidavit pursuant to 15 U.S.C. § 1051(a)(3) averring that: 1) Maurag “believes” that it is the owner of the mark being registered; and 2) that “to the best of [Maurag’s] knowledge and belief, no other person has the right to use such mark in commerce.” Id. § 1051(a)(3)(A), (a)(3)(D). Alosa and counsel for Maurag prepared the application and affidavit. On July 19, 2004, the USP-TO allowed the mark DORALDO for publication and registration and issued it on the USPTO’s Principal Register with Registration No. 2,970,717. At some point after the USPTO issued the registration for the mark, Charlie Messina, Mr. Bertuglia’s old business partner, became a partner in Maurag. Maurag has since opened a second Doraldo’s restaurant in Kilmarnock, Virginia. In the years since selling Doraldo Risto-rante Italiano, Mr. Bertuglia organized several different Virginia companies, including defendants Doraldo’s Inc., Foxhun-ter Grill, Inc., and Pelican Cove LLC. Through these companies," }, { "docid": "11148029", "title": "", "text": "tag line “former owner of Doraldo’s in Williamsburg.” Mr. Bertuglia has counterclaimed, alleging that Maurag defrauded the USPTO by registering a mark that was already in use and that it did not own. Based on the evidence introduced by the parties at a bench trial and the application of relevant law, the Court FINDS in favor of defendants on the infringement claim because Maurag did not prove that the advertisements in question are likely to cause customer confusion. The Court further FINDS in favor of Maurag on the counterclaim because Mr. Bertuglia did not prove, by clear and convincing evidence, that Maurag subjectively intended to deceive the USPTO when it registered the disputed mark. I. Findings of Fact Defendant Aldo Bertuglia is a career restaurateur who has owned and operated a number of dining establishments, first in the New York City area and later in the region surrounding Williamsburg, Virginia. While in the New York City area, Mr. Bertuglia combined his wife’s name, Dora, with his first name, Aldo, to create a restaurant named “Doraldo’s.” After moving to Williamsburg, Mr. Ber-tuglia formed a Virginia corporation, Dor-aldo Restaurant, Inc., with a partner named Cologio “Charlie” Messina. The corporation owned and operated Doraldo Ristorante Italiano, commonly known as Doraldo’s, beginning in 1997. In 2001, Francesco “Frankie” Alosa, through his company Maurag, bought the Williamsburg Doraldo Ristorante Italiano from Mr. Bertuglia’s corporation. The sale was documented by an Asset Purchase Agreement (“APA”) (Def.’s Ex. 3). The only documented reference to the trade name “Doraldo’s” appears in the Schedule of Assets conveyed (i.e., Attachment A). The first entry on that list states: The use of the tradename, Doraldo’s, to be used exclusively at 1915 Pocahontas Trail, D-2, Williamsburg, Virginia, including the right to use the telephone number, and the right to use any yellow page advertising that is in place along with any other such advertising. (Def.’s Ex. 3.) Following the sale, Doraldo Restaurant Ine. ceased doing business and filed Articles of Dissolution with the Virginia State Corporation Commission. Maurag has owned and operated Doral-do Ristorante Italiano continually since purchasing it in 2001. Three" }, { "docid": "5445293", "title": "", "text": "To prevail on its § 43(a) infringement claim, WSB must demonstrate not only that its trademark is protectible, but that Leading Authorities has made use of a “colorable imitation” of that trademark that is likely to cause confusion among consumers. The relevant inquiry is thus whether Leading Authorities’ use of “washingtonspeakers” (and “washington-speakers”) in the domain names at issue constitutes a colorable imitation of “Washington Speakers Bureau” that is likely to confuse consumers as to the source or sponsorship of the Leading Authorities website. See Lone Star Steakhouse & Saloon v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.1995). The likelihood of confusion is a factual issue that turns on the particular circumstances of each case. Pinehurst, 148 F.3d at 421. The phrase “washingtonspeakers ” does not precisely duplicate the protected ‘Washington Speakers Bureau.” But this does not end the analysis, for absolute identity is not necessary for infringement; all that is necessary is enough similarity between the marks to confuse consumers. In determining whether there is a likelihood of confusion between two marks, courts consider a number of factors, including “(a) the' strength or distinctiveness of the mark; (b) the similarity of the two marks; (c) the similarity of the goods/services the marks identify; (d) the similarity of the facilities the two parties use in their businesses; (e) the similarity of the advertising used by the two parties; (f) the defendant’s intent; (g) [evidence of] actual confusion.” Pizzeria Uno, 747 F.2d at 1527. Certain factors may not be relevant in some eases, and the factors may not deserve equal emphasis in each case. Id. The first factor concerns the strength or distinctiveness of the trademark. The Fourth Circuit has emphasized that this analysis is distinct from the validity analysis detailed above. Lone Star, 43 F.3d at 933-35. Even if a mark is valid and protectible, it may be so weak that the public is not likely to be confused by the use of a similar mark on other goods and services. Id. at 935. As established above, “Washington Speakers Bureau” is a descriptive mark, and thus a" }, { "docid": "12583456", "title": "", "text": "Inc., 448 F.3d 268, 277 (4th Cir.2006) (internal quotation marks omitted). III. Korman makes two contentions of error in this appeal. First, she maintains that the district court erred in concluding that the use of her mark, “THE WINDSHIELD DOCTOR,” constituted trademark infringement and unfair competition on Synergistic’s “GLASS DOCTOR®” mark. Second, she contends that the court abused its discretion in awarding more than $142,000 in damages to Synergistic pursuant to the Lanham Act. We assess these contentions in turn. A. In order to prevail on claims of trademark infringement and unfair competition under the Lanham Act, a plaintiff is obliged to show the court that “it ha[d] a valid, protectible trademark and that the defendant’s use of a colorable imitation of the trademark is likely to cause confusion among consumers.” Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 930 (4th Cir.1995). In this proceeding, the parties have stipulated that Synergistic’s mark is protectible because it is incontestable. See Stipulations ¶ 31. This stipulation of “incontestability provides a strong presumption in favor of the mark’s predictability and validity,” but it does not, in and of itself, establish the statutory requirement of likelihood of confusion. Lone Star, 43 F.3d at 933. Therefore, we are obligated to examine de novo whether the confusion element of Synergistic’s claims has been satisfied. In assessing the likelihood of confusion issue, our Court has identified seven factors that should be considered: (1) the strength or distinctiveness of the [plaintiffs] mark; (2) the similarity of the two marks; (3) the similarity of the goods and services that the marks identify; (4) the similarity of the facilities that the two parties use in their businesses; (5) the similarity of the advertising the two parties use; (6) the defendant’s intent; and (7) actual confusion. Id. at 933 (citing Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984)). Not all of these factors will be relevant in every trademark dispute, and there is no need for each factor to support Synergistic’s position on the likelihood of confusion issue. See Pizzeria Uno, 747" }, { "docid": "11148041", "title": "", "text": "the goodwill associated with the trade name and service mark DORALDO. See generally 3 McCarthy on Trademarks and Unfair Competition § 18:17 (4th ed.) (discussing assignments in gross). On the other hand, the operative language could be read as “to be used exclusively by the buyer at,” implying that the buyer has the sole right to use the mark. This construction is bolstered by the fact that Mr. Bertuglia dissolved Dor-aldo Restaurant Inc. immediately after the sale without making any provision for new ownership of its trade name and service mark assets. This suggests Mr. Bertuglia believed that he had conveyed all right, title, and interest in the assets. The arguable ambiguity in the APA prevents Mr. Bertuglia from proving fraudulent intent solely from the face of the contract, and there was no convincing par-ol evidence regarding the parties’ mutual intent when entering into the transaction. The Court therefore FINDS that Mr. Ber-tuglia has not proved by clear and convincing evidence that Maurag knew it was not the owner of the mark at the time of registration. III. Conclusion For the reasons set forth above, the Court FINDS in favor of defendants on Maurag’s trademark infringement claim and DENIES defendant Bertuglia’s petition to cancel Maurag’s trademark. This matter is therefore DISMISSED WITH PREJUDICE. While this action is concluded, the question of who actually has the right to use the DORALDO service mark outside of the Williamsburg location remains unresolved. This issue is better negotiated than litigated. Messrs. Bertuglia and Al-osa are savvy businessmen and accomplished restaurateurs who can reach an understanding while enjoying a fine vintage (whether red, white or rose) in someone’s Italian restaurant. The Clerk is DIRECTED to forward a copy of this Opinion and Order to all counsel of record. IT IS SO ORDERED. . The first element, ownership of the mark, is discussed infra, Part II.B. . The only testimony close to showing actual confusion was inadmissible hearsay from Mr. Alosa that customers had told him that they thought Doraldo's was affiliated with Mr. Ber-tuglia’s restaurants. . A party may make nominative use of another’s mark" } ]

[ { "docid": "22434353", "title": "", "text": "1018 n. 3 (9th Cir.1980). In this circuit there are two interrelated legal tests for the issuance of a preliminary injunction. These tests are “not separate” but rather represent “the outer reaches ‘of a single continuum.’ ” Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. Id. See also Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1134 (9th Cir.1979). At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor. Los Angeles Memorial Coliseum Commission, 634 F.2d at 1201; Miss Universe, 605 F.2d at 1134. “[T]he relative hardship to the parties” is the “critical element” in deciding at which point along the continuum a stay is justified. Benda v. Grand Lodge of International Association of Machinists, etc., 584 F.2d 308, 314-15 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). In addition, in cases such as the one before us, the public interest is a factor to be strongly considered. See Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir.1977). In this case, the Secretary seeks a stay pending appeal of a preliminary injunction. Therefore, in order to determine whether the Secretary has raised serious legal questions or whether she has shown a probability of success on the merits, we must evaluate her arguments for overturning the district court’s preliminary injunction on appeal. As a general rule, we have held that an “order issuing or denying a preliminary injunction will only be reversed if the lower court abused its discretion or based its decision upon erroneous legal premises.” Los Angeles Memorial Coliseum Commission, 634 F.2d at 1200. DISCUSSION I. IRREPARABLE INJURY, THE BALANCE OF HARDSHIPS, AND THE PUBLIC INTEREST. The Secretary’s contention that the government will suffer substantial hardship in the absence of a stay pending appeal is premised" } ]

[ { "docid": "16248467", "title": "", "text": "been entered. Appellants have appealed from the denial of the preliminary injunction, and have also filed an emergency motion for injunctive relief pending appeal, seeking relief before the November 2, 2010 elections in Maine. This Court in turn expedited consideration of both the appeal from the denial of the preliminary injunction and the emergency motion. Oral argument was held on Tuesday, October 5, 2010 and the case was taken under advisement. We deny the appellants’ emergency motion to enjoin operation of the challenged provisions of Maine’s election laws pending the outcome of this appeal. Standards for Issuance of Relief Pending Appeal A party requesting injunctive relief pending appeal bears the burden of showing that the circumstances of the case justify the exercise of the court’s discretion. Nken v. Holder, — U.S.-, 129 S.Ct. 1749, 1760-61, 173 L.Ed.2d 550 (2009). As in cases involving stays of actions pending appeal, we are guided by consideration of four factors: (1) whether the applicant has made a strong showing that he is likely to succeed on the merits; (2)whether the applicant will be irreparably injured absent relief; (3) whether issuance of relief will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 1761 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). The first two factors are the most critical. Both require a showing of more than mere possibility. Plaintiffs must show a strong likelihood of success, and they must demonstrate that irreparable injury will be likely absent an injunction. Winter v. Natural Res. Def. Council, Inc., — U.S. -, 129 S.Ct. 365, 375-376, 172 L.Ed.2d 249 (2008). Irreparable Injury and Probability of Success on the Merits The only irreparable injury claimed by appellants is that to their First Amendment rights. “The fact that [appellants are] asserting First Amendment rights does not automatically require a finding of irreparable injury.” Pub. Serv. Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380, 382 (1st Cir.1987) (quoting Rushia v. Town of Ashburnham, 701 F.2d 7, 10 (1st Cir.1983)) (internal" }, { "docid": "23305206", "title": "", "text": "to establish a briefing schedule on the question whether his second-in-time habeas petition is successive. In the alternative, he asks this court to hold that his petition is not successive and to remand it to the district court for consideration. He also asks for a stay of execution. II. DISCUSSION A Stay of Execution 1. Standard of Review We review a district court’s grant of a stay of execution for abuse of discretion. Delo v. Stokes, 495 U.S. 320, 322, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990) (“The District Court abused its discretion in granting a stay of execution.”); Lackey v. Scott, 52 F.3d 98, 100 (5th Cir.1995). The Supreme Court has stated that a “stay of execution is an equitable remedy.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). A stay of execution “is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue inference from the federal courts.” Id. (citations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion.” Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citations omitted). In deciding whether to grant a stay of execution, the district court was required to consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public intei’est lies. Id. at 434, 129 S.Ct. 1749 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)); see also Buxton v. Collins, 925 F.2d 816, 819 (5th Cir.1991). 2. The District Court Improperly Granted A Stay In granting Adams’s motion for a stay of execution, the district court did not rule on Adams’s Rule 60(b)(6) motion. Nor did the court explicitly address the merits of Adams’s Rule" }, { "docid": "20070874", "title": "", "text": "because it was not “adequately individualized or supported by the record.” Nesbitt I, 532 F.Supp.2d at 125. However, this award in the final judgment was “not ... the same award provided by the hearing officer, despite the similarities in the outcome.” Nesbitt III, 669 F.Supp.2d at 87. Instead, the defendant provided evidence that the award of 950 hours of tutoring in broad math and 950 hours of tutoring in broad reading, in addition to the tutoring already received by Nesbitt, is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services' the school district should have supplied in the first place.” Id. at 85 (quoting Reid v. District of Columbia, 401 F.3d 516, 524 (D.C.Cir.2005)). The plaintiff has filed an appeal and a motion to stay the judgment pending appeal which is now before the Court. For the reasons explained below, that motion is denied. II. Legal Standard Last year the Supreme Court described the “traditional standards” for the issuance of a stay pending appeal as follows: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, — U.S. —, 129 S.Ct. 1749, 1756, 173 L.Ed.2d 550 (2009). The first two factors are the most critical. Id. at 1761. See also id. at 1763 (Kennedy, J., concurring) (“This is not to say that demonstration of irreparable harm without more is sufficient to justify a stay of removal. The Court has held that ‘[a] stay is not a matter of right, even if irreparable injury might otherwise result.’ ”) (citing Va. Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926)). The court of appeals has emphasized that the traditional factors are “typically evaluated on a ‘sliding scale.’ ” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009) (quoting Davenport" }, { "docid": "20070875", "title": "", "text": "the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, — U.S. —, 129 S.Ct. 1749, 1756, 173 L.Ed.2d 550 (2009). The first two factors are the most critical. Id. at 1761. See also id. at 1763 (Kennedy, J., concurring) (“This is not to say that demonstration of irreparable harm without more is sufficient to justify a stay of removal. The Court has held that ‘[a] stay is not a matter of right, even if irreparable injury might otherwise result.’ ”) (citing Va. Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926)). The court of appeals has emphasized that the traditional factors are “typically evaluated on a ‘sliding scale.’ ” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009) (quoting Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C.Cir.1999)). A strong argument in favor of one factor may excuse a relatively weaker showing on another; however, in framing the sliding scale, the court of appeals has stated: “Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? Without such substantial indication of probable success [on the merits], there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); see Davis, 571 F.3d at 1292 (“But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors clearly favors granting the injunction.”). In addition, in analyzing when a harm is irreparable in the context of economic harms, the movant must show that the harm would threaten the existence of its business or that the moneys lost as a result" }, { "docid": "4564238", "title": "", "text": "When seeking such relief, the moving party bears the burden of showing that the circumstances justify an imposition of the stay. See Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citing Clinton v. Jones, 520 U.S. 681, 708, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997); Landis v. N. Am. Co., 299 U.S. 248, 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936)); see also In re L.A. Dodgers, LLC, 465 B.R. 18, 28 (D.Del.2011). The standard for ascertaining whether the imposition of a stay is appropriate is determined by a consideration of four factors: (1) [Wlhether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) whether a stay is in the public interest. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (further citation omitted); Nken, 556 U.S. at 434 (internal citation omitted); Jackson v. Danberg, 656 F.3d 157, 162 (3d Cir.2011) (internal citations omitted). In order to succeed on such a motion, the moving party must “show satisfactory evidence on all four criteria.” In re Turner, 207 B.R. 373, 375 (2d Cir. BAP 1997) (internal citations and quotations omitted); In re Innovative Commc’n, 390 B.R. 184, 187 (Bankr.D.V.I.2008) (internal citations omitted). In regard to the first factor, Gar-lock must show that it is likely to succeed on the merits of its appeal. As the basis of its argument under this first factor, Garlock once again rehashes the allegations it previously argued at length before the issuance of both the initial Memorandum Opinion on January 30, 2012, and the most recent Amended Memorandum Opinion on June 11, 2012. In fact, the text of Gariock’s Emergency Motion is essentially a mirror image of its prior briefing submitted to the Court. As previously noted, despite once again concluding that Garlock lacked standing to object to the Joint Plan in its Amended Opinion, the Court nonetheless" }, { "docid": "22494568", "title": "", "text": "person may not be excluded pursuant to § 6(b), even if the 50,000-person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect. * * * Accordingly, the petitions for certiorari are granted, and the stay applications are granted in part. It is so ordered. Justice THOMAS, with whom Justice ALITO and Justice GORSUCH join, concurring in part and dissenting in part. I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full. The decision whether to stay the injunctions is committed to our discretion, ante, at 2086 - 2088, but our discretion must be \"guided by sound legal principles,\" Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks omitted). The two \"most critical\" factors we must consider in deciding whether to grant a stay are \"(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits\" and \"(2) whether the applicant will be irreparably injured absent a stay.\" Ibid. (internal quotation marks omitted). Where a party seeks a stay pending certiorari, as here, the applicant satisfies the first factor only if it can show both \"a reasonable probability that certiorari will be granted\" and \"a significant possibility that the judgment below will be reversed.\" Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U.S. 1301, 1302, 112 S.Ct. 1, 115 L.Ed.2d 1087 (1991) (Scalia, J., in chambers). When we determine that those critical factors are satisfied, we must \"balance the equities\" by \"explor[ing] the relative harms to applicant and respondent, as well as the interests of the public at large.\" Id., at 1304-1305, 112 S.Ct. 1 (internal quotation marks omitted); cf. Nken, supra, at 435, 129 S.Ct. 1749 (noting that the factors of \"assessing the harm to the opposing party and weighing the public interest\" \"merge when the Government is the opposing party\"). The Government has satisfied the standard for issuing a stay pending certiorari. We have, of course, decided to" }, { "docid": "20611529", "title": "", "text": "Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1197 (2d Cir.1971) (Friendly, J.) (citation omitted). However, we review de novo the District Court’s decision on the likelihood of success, for it involves a purely legal determination. See In re Forty-Eight Insulations, 115 F.3d at 1301. IV. ANALYSIS Despite the growing importance of stays pending appeal, we have provided little direction on how to balance the four stay factors, mostly “[b]ecause this [C]ourt ordinarily grants or denies a stay pending appeal without opinion.” Westinghouse Electric Corp., 949 F.2d at 658. Despite its comprehensiveness, Westinghouse unfortunately shed little light on how to balance the four stay factors when not all of them point in the same direction. (The factors there all favored a stay denial.) We take this opportunity to provide guidance on how to conduct a balancing of the stay factors. A. The Sliding-Scale Approach to Balancing the Stay Factors Under Federal Rule of Bankruptcy Procedure 8007, a party can move to stay the effect of a bankruptcy court order pending a resolution on appeal. See Fed. R. Bankr.P. 8007. The factors considered “overlap” the familiar ones courts look to in ruling on applications for preliminary injunctions. See Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (observing that “similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined”). To repeat, essentially what was already noted above, the following factors come into play: (1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). In order not to ignore the many gray shadings stay requests present, courts “balance[e] them all” and “consider the relative strength of the four factors.” Brady v. Nat’l Football League, 640" }, { "docid": "7163308", "title": "", "text": "ensure compliance with paragraph (1) of this amended injunction. Cooper II, 245 F.R.D. at 64-65. On October 26, 2007, the Intervenor Defendants filed a notice of appeal. (See dkt. # 97.) The Intervenor Defendants now ask for a stay of the court’s Amended Injunction pending their appeal. (See dkt. # 93). For the following reasons, the Intervenor Defendants’ motion for a stay (dkt.# 93) is GRANTED. Based on the nature of the Intervenor Defendants’ request, the court assumes that their motion is brought pursuant to Rule 62(e) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”). Rule 62(e) reads as follows: “When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal....” Fed.R.Civ.P. 62(c). As the Second Circuit recently noted, The four factors to be considered in issuing a stay pending appeal are well known: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. In re World Trade Center Disaster Site Litig., 503 F.3d 167, 170-71 (2d Cir.2007) (internal quotation marks and footnote omitted). “[T]he degree to which a factor must be present varies with the strength of the other factors, meaning that more of one [factor] excuses less of the other.” Id. (internal quotation marks omitted). The court believes that these factors weigh in favor of granting a stay. With regard to the first factor, the court must determine whether the Intervenor Defendants have made a “strong showing” that they are likely to succeed on the merits of their appeal. Or, put another way, the court is put in the odd position of deciding the likelihood that the issuance or scope of the Amended Injunction is somehow improper, even though the court obviously believes that the Amended Injunction is" }, { "docid": "14915632", "title": "", "text": "appropriate, a court must evaluate the following factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). “[WJhere the order stayed involves a preliminary injunction ... it is logically inconsistent, and in fact a fatal flaw, to subsequently find no irreparable nor even serious harm to the plaintiffs pending appeal.” Id. at 234-35. The Second Circuit has therefore concluded that, “the grant of a stay of a preliminary injunction pending appeal will almost always be logically inconsistent with a prior finding of irreparable harm that is imminent as required to sustain the same preliminary injunction.” Id. at 235. An exception to this rule is the grant of a stay pending an expedited appeal. It is appropriate for a district court to grant “a brief stay of a preliminary injunction in an appropriate case in order to permit the Court of Appeals an opportunity to consider an application for a stay pending an expedited appeal.” Id. at 235. The instant action presents such an appropriate case. The court has concluded that the plaintiffs have demonstrated a substantial likelihood of success on the merits and irreparable harm. The court therefore cannot find that the defendants, the stay applicants, can demonstrate a likelihood of success on the merits for the purposes of their stay application. However, in this case, the defendants would also be irreparably harmed should the preliminary injunction enter and the circuit court later reverse this court. Once revealed, Doe cannot be made anonymous again. Furthermore, colorable claims exist that the public interest lies in favor of granting the stay (if this court is in error), as well as in denying it (if this court is correct in its judgment). The court" }, { "docid": "3222741", "title": "", "text": "Petitioners’ motion under the four-factor standard for a stay pending judicial review: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citation omitted). For reasons explained below, however, we agree with Environmental Petitioners that the 90-day stay was unauthorized by section 307(d)(7)(B) and was thus unreasonable. Accordingly, we have no need to consider the criteria for a stay pending judicial review. Cf. United States Association of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017) (“When ... the ruling under review rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, we may resolve the merits even though the appeal is from the entry of a preliminary injunction.” (citation and internal quotation marks omitted)). We shall therefore vacate the stay as “arbitrary, capricious, [and] in excess of statutory ... authority.” 42 U.S.C. § 7607(d)(9)(A), (C). A. Defending the stay, EPA repeatedly invokes its “broad discretion” to reconsider its own rules. EPA Opp. 6. Agencies obviously have broad discretion to reconsider a regulation at any time. To do so, however, they must comply with the Administrative Procedure Act (APA), including its requirements for notice and comment. 5 U.S.C. § 553; see Perez v. Mortgage Bankers Association, — U.S.-, 135 S.Ct. 1199, 1206, 191 L.Ed.2d 186 (2015) (“[T]he D.C. Circuit correctly read § 1 of the APA to mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”). As we have explained, “an agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked” and “may not alter [such a rule] without notice and comment.” National Family" }, { "docid": "1799151", "title": "", "text": "what point on the continuum a stay pending review is justified. Id. (citations omitted). This “continuum” was essentially the same as the “sliding scale” approach we long applied to requests for preliminary injunctions, whereby “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). The Abbassi formulation remained our standard for stays of removal until an aspect of it — its treatment of the irreparable harm factor — was rejected as too lenient in Nken. Nken’s principal holding was that stays of removal are governed by “the traditional test for stays,” rather than 8 U.S.C. § 1252(f)’s higher standard for enjoining an alien’s removal, but it also endeavored to clarify “what that [traditional stay] test is.” 129 S.Ct. at 1760. Nken began by noting the four factors that have been considered when evaluating whether to issue a stay: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 1761 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (quotation marks omitted)). “The first two factors,” Nken said, “are the most critical.” Id. We will say more about each of these factors in a moment, but pause first to emphasize that while, as we develop later, Nken raised the minimum permissible showing of irreparable harm necessary to justify a stay of removal, it did not disturb the overall manner in which courts balance the various stay factors once they are established. Nken held that if the petitioner has not made a certain threshold showing regarding irreparable harm — and we discuss what that threshold is below— then a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors. See" }, { "docid": "14915631", "title": "", "text": "to serve a compelling government interest. The court concludes that the application of § 2709(c) to the plaintiffs in this case on the topic of Doe’s identity does not pass strict scrutiny. The defendants have failed to show a compelling state interest that is served by gagging the plaintiffs with regard to Doe’s identity. If the government’s interest is more broadly defined as preventing an unknown subject of the government’s investigation from learning of the government’s investigation, which would support a finding of a compelling interest, the gag provision as to Doe’s identity is not narrowly tailored to serve that interest. Because § 2709(c) as applied cannot survive strict scrutiny, the plaintiffs have shown a substantial likelihood of success on the merits, as well as irreparable harm. Therefore, the court grants their motion to enjoin enforcement of § 2709(c) against them with regard to Doe’s identity. V. STAY The defendants requested a stay in the event the court granted the Motion for Preliminary Injunction. “To determine whether a stay of an order pending appeal is appropriate, a court must evaluate the following factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). “[WJhere the order stayed involves a preliminary injunction ... it is logically inconsistent, and in fact a fatal flaw, to subsequently find no irreparable nor even serious harm to the plaintiffs pending appeal.” Id. at 234-35. The Second Circuit has therefore concluded that, “the grant of a stay of a preliminary injunction pending appeal will almost always be logically inconsistent with a prior finding of irreparable harm that is imminent as required to sustain the same preliminary injunction.” Id. at 235. An exception to this rule is the grant" }, { "docid": "20611530", "title": "", "text": "appeal. See Fed. R. Bankr.P. 8007. The factors considered “overlap” the familiar ones courts look to in ruling on applications for preliminary injunctions. See Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (observing that “similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined”). To repeat, essentially what was already noted above, the following factors come into play: (1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). In order not to ignore the many gray shadings stay requests present, courts “balance[e] them all” and “consider the relative strength of the four factors.” Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir.2011) (quoting Fargo Women’s Health Org. v. Schafer, 18 F.3d 526, 538 (8th Cir.1994) (internal quotation marks omitted)); see also 16A Charles Alan Wright et al., Federal Practice and Procedure § 3954 (4th ed. 2008) (“The four factors should be balanced; thus, for example, if the balance of harms tips heavily enough in the 'stay applicant’s favor then the showing of likelihood of success need not be as strong, and vice versa.” (footnotes omitted)). “[T]he most critical” factors, according to the Supreme Court, Nken, 556 U.S. at 434, 129 S.Ct. 1749, are the first two: whether the stay movant has demonstrated (1) a strong showing of the likelihood of success and (2) that it will suffer irreparable harm — the latter referring to “harm that cannot be prevented or fully rectified” by a successful appeal, Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 386 (7th Cir.1984) (Posner, J.). Though both are necessary, the former is arguably the more important piece of the stay analysis. As Judge Posner has remarked, it" }, { "docid": "3222740", "title": "", "text": "two requirements for mandatory reconsideration, ie., that it was “impracticable to raise” an objection during the public comment period and the objection is “of central relevance to the outcome of the rule.” Only when these two conditions are met does the statute authorize the Administrator to stay a lawfully promulgated final rule. Accordingly, to determine whether the stay was lawful — that is, to assess EPA’s final action — we must consider whether the agency met the statutory requirements for reconsideration. In other words, although absent a stay we would have no authority to review the agency’s decision to grant reconsideration, because EPA chose to impose a stay suspending the rule’s compliance deadlines, we must review its reconsideration decision to determine whether the stay was authorized under section 307(d)(7)(B). III. Environmental Petitioners seek two types of relief: a “judicial stay” of EPA’s administrative stay, and in the alternative, “summary disposition and vaca-tur” of EPA’s stay “because the stay is clearly unlawful.” Environmental Petitioners’ Mot. 1. To consider the former, we would have to assess Environmental Petitioners’ motion under the four-factor standard for a stay pending judicial review: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citation omitted). For reasons explained below, however, we agree with Environmental Petitioners that the 90-day stay was unauthorized by section 307(d)(7)(B) and was thus unreasonable. Accordingly, we have no need to consider the criteria for a stay pending judicial review. Cf. United States Association of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017) (“When ... the ruling under review rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, we may resolve the merits even though the appeal is from" }, { "docid": "4401195", "title": "", "text": "defendants Everex, VenTel, and Omnitel is hereby GRANTED, under the terms set out at the conclusion of this order. C. Defendants’ Motion to Stay Imposition of Injunction Federal Rule of Civil Procedure 62(c) states that a district court “in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal.” There are four factors to be considered in deciding whether to grant a stay of injunction pending appeal under Rule 62(c): “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Standard Havens Products, Inc. v. Gencor Industries, Inc., 897 F.2d 511, 512 (Fed. Cir.1990) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987)). These, however, are guidelines designed to assist the court in deciding a motion to stay injunction, rather than rigid factors which must each be given equal weight. Id. at 512-513. Indeed, the Federal Circuit has adopted a “sliding scale approach” to balancing the equities, such that when “harm to applicant is great enough, a court will not require ‘a strong showing’ that applicant is ‘likely to succeed on the mer its.’ ” Id. at 513 (quoting Hilton, 481 U.S. at 776, 107 S.Ct. at 2119). The court, after a careful review of all the relevant evidence and legal authority, is doubtful as to the strength of defendants’ showing of likely success on appeal. Nonetheless, the court is faced, in this case, with a difficult balancing act, both on the issue of the hardship to the parties involved and in terms of the public interest. The court is not unsympathetic to Hayes’ argument that parties found by clear and convincing evidence to be willful infringers should be made to pay a stiff penalty for such knowing disregard of valid patent rights. Likewise, valid patent holders have a right to expect that their" }, { "docid": "21758680", "title": "", "text": "determined that the “Court has never rejected [the balancing] formulation, and [did] not believe it [did] so” in Winter. Id. at 51, 129 S.Ct. 865 (Ginsburg, J., dissenting). That reading of Winter comports with the Supreme Court’s following opinion on temporary equitable orders, Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), decided in the same term just five months later (with both opinions written by Chief Justice Roberts). There the Court explained that a district court must undertake “consideration of [the] four factors.” Id. at 434, 129 S.Ct. 1749. “Once an applicant satisfies the first two factors, the traditional [equitable relief] inquiry calls for assessing the harm to the opposing party and weighing the public interest.” Id. at 435, 129 S.Ct. 1749. Though Nken dealt with the issuance of a stay pending appeal, the Court explained that the same factors apply as in the preliminary injunction context “not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. at 434, 129 S.Ct. 1749. Read together, these companion cases promote the traditional flexibility to granting interim equitable relief in which the district court has full discretion to balance the four factors once gateway thresholds are met. See id.; Winter, 555 U.S. at 32, 129 S.Ct. 365. Second, other circuits have agreed with our reading of Winter and Nken. For instance, the Seventh Circuit, citing Winter, has held that a preliminary injunction may issue if the movant demonstrates it will, face irreparable harm and has a “plausible claim on the merits,” after which “the ‘balance of equities’ favors” the movant. Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J.). “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiffs claim on the merits can be while still supporting some preliminary relief.” Id. Similarly," }, { "docid": "4564237", "title": "", "text": "what appeared to be a reconsideration motion, entitled a Motion for Reargument, Rehearing, and/or to Alter or Amend the Judgment. (See Docket No. 168.) The Court granted Garlock’s reconsideration request, and gave it the opportunity to once again appear before and have its objections heard by the Court at oral argument on May 8, 2012. On June 11, 2012, this Court filed an Amended Memorandum Opinion and Order, once again confirming the Joint Plan. In this Amended Opinion, the Court dedicated approximately thirty pages to Garlock’s objections. Despite finding that Garlock lacked standing to object to the Joint Plan, the Court nonetheless discussed Garlock’s arguments on the merits in extensive detail, concluding that its substantive objections were unfounded. On June 25, 2012, Garlock filed the present Emergency Motion, requesting the Court to stay its Amended Memorandum Opinion and Order from going effective pending Garlock’s appeal to the Third Circuit. II. DISCUSSION A motion for a stay of a Court’s decision is an “extraordinary remedy.” See United States v. Cianfrani, 573 F.2d 835, 846 (3d Cir.1978). When seeking such relief, the moving party bears the burden of showing that the circumstances justify an imposition of the stay. See Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citing Clinton v. Jones, 520 U.S. 681, 708, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997); Landis v. N. Am. Co., 299 U.S. 248, 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936)); see also In re L.A. Dodgers, LLC, 465 B.R. 18, 28 (D.Del.2011). The standard for ascertaining whether the imposition of a stay is appropriate is determined by a consideration of four factors: (1) [Wlhether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) whether a stay is in the public interest. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (further citation omitted); Nken, 556 U.S." }, { "docid": "23305207", "title": "", "text": "requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion.” Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citations omitted). In deciding whether to grant a stay of execution, the district court was required to consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public intei’est lies. Id. at 434, 129 S.Ct. 1749 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)); see also Buxton v. Collins, 925 F.2d 816, 819 (5th Cir.1991). 2. The District Court Improperly Granted A Stay In granting Adams’s motion for a stay of execution, the district court did not rule on Adams’s Rule 60(b)(6) motion. Nor did the court explicitly address the merits of Adams’s Rule 60(b)(6) motion. However, as explained above, in order to grant a stay of execution, the district court was required to consider four factors, including that “the stay applicant has made a strong showing that he is likely to succeed on the merits.” Nken, 556 U.S. at 434, 129 S.Ct. 1749. Therefore, in granting the stay, the district court made an implicit determination that it was reasonably likely that Adams’s Rule 60(b)(6) motion justified relief from judgment. Thus, in order to assess whether the district court properly exercised its discretion in granting a stay, we determine whether Adams has shown a likelihood of success on the merits of his Rule 60(b)(6) motion. As a preliminary matter, we determine whether the district court had jurisdiction to rule on Adams’s Rule 60(b)(6) motion. In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court stated that a Rule 60(b) motion does not contain a habeas corpus “claim,” and thus should not be construed as a successive petition, when the motion “attacks, not" }, { "docid": "11896175", "title": "", "text": "and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. V. Legal Standard The Government moves to stay the district court’s order pending this appeal. “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’ ” Id. (quoting Virginian, 272 U.S. at 672-73, 47 S.Ct. 222) (alterations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34, 129 S.Ct. 1749. Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434, 129 S.Ct. 1749). “The first two factors ... are the most critical,” Nken, 556 U.S. at 434, 129 S.Ct. 1749, and the last two steps are reached “[o]nce an applicant satisfies the first two factors,” id. at 435, 129 S.Ct. 1749. We conclude that the Government has faded to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay. We emphasize, however, that our analysis is a preliminary one: We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest. The Government has not shown that" }, { "docid": "4401194", "title": "", "text": "makes the grant or denial of an injunction by the court discretionary within the facts of each case. See, e.g., Windsurfing Int’l, Inc. v. AMF, Inc., 782 F.2d 995, 1002 (Fed.Cir.1986). In the instant case, as noted above, the jury found that the patent in question was valid and that each defendant had willfully infringed it. In light of that finding, Hayes has the right to exclude others from further use of its property. See, e.g., Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed.Cir.1983). As all parties agree, while the court is not required to issue an injunction, “[i]t is the general rule that an injunction will issue when infringement has been adjudged, absent a sound reason for denying it.” Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1247 (Fed.Cir.1989). Having thoroughly reviewed the facts of this particular case and the law cited by Hayes and by all three defendants, the court is unpersuaded that the requisite “sound reason” exists for denying Hayes’ motion for injunction. Accordingly, Hayes’ motion for injunction against defendants Everex, VenTel, and Omnitel is hereby GRANTED, under the terms set out at the conclusion of this order. C. Defendants’ Motion to Stay Imposition of Injunction Federal Rule of Civil Procedure 62(c) states that a district court “in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal.” There are four factors to be considered in deciding whether to grant a stay of injunction pending appeal under Rule 62(c): “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Standard Havens Products, Inc. v. Gencor Industries, Inc., 897 F.2d 511, 512 (Fed. Cir.1990) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987)). These, however, are guidelines designed to assist the court in deciding a motion to stay injunction," } ]

[ { "docid": "22701016", "title": "", "text": "They relied on § 307(f) of the Clean Air Act, 91 Stat. 777, 42 U. S. C. § 7607(f) (1976 ed., Supp. V), which permits the award of attorney’s fees in certain proceedings “whenever [the court] determines that such award is appropriate.” Respondents argued that, despite their failure to obtain any of the relief they requested, it was “appropriate” for them to receive fees for their contributions to the goals of the Clean Air Act. The Court of Appeals agreed with respondents, ultimately awarding some $45,000 to the Sierra Club and some $46,000 to EDF. Sierra Club v. Gorsuch, 217 U. S. App. D. C. 180, 672 F. 2d 33 (1982); Sierra Club v. Gorsuch, 221 U. S. App. D. C. 450, 684 F. 2d 972 (1982). We granted certiorari, 459 U. S. 942 (1982), to consider the important question decided by the Court of Appeals. I The question presented by this case is whether it is “appropriate,” within the meaning of § 307(f) of the Clean Air Act, to award attorney’s fees to a party that achieved no success on the merits of its claims. We conclude that the language of the section, read in the light of the historic principles of fee-shifting in this and other countries, requires the conclusion that some success on the merits be obtained before a party becomes eligible for a fee award under § 307(f). A Section 307(f) provides only that: “In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attor ney and expert witness fees) whenever it determines that such award is appropriate.” 91 Stat. 777, 42 U. S. C. §7607(f) (1976 ed., Supp. V) (emphasis added). It is difficult to draw any meaningful guidance from § 307 (f )’s use of the word “appropriate,” which means only “specially suitable: fit, proper.” Webster’s Third New International Dictionary 106 (1976). Obviously, in order to decide when fees should be awarded under § 307(f), a court first must decide what the award should be “specially suitable,” “fit,” or “proper” for. Section 307(f) alone does not begin to" } ]

[ { "docid": "3991412", "title": "", "text": "they were unsuccessful because overall they achieved “excellent results” and are therefore entitled to a “fully compensatory fee.” See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). Petitioners also contend that their fee request has been carefully documented and that market forces can be relied upon to substantiate the reasonableness of the specific items of the request challenged by EPA. We hold that petitioners are entitled to attorneys’ fees, but conclude that the fee amount ultimately awarded to petitioners must be reduced in light of poor documentation and petitioners’ lack of success on one issue. We then refer the remaining factual issues to a magistrate. I. Petitioners’ fee request is grounded on section 307(f) of the Clean Air Act, which provides: In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. 42 U.S.C. § 7607(f) (1982). While most fee statutes are limited to “prevailing” parties, see, e.g., 5 U.S.C. § 552(a)(4)(E) (1982) (Freedom of Information Act fee awards), Congress in enacting section 307(f) specifically decided not to limit the class of potential beneficiaries in that manner. See H.R. Rep. No. 294, 95th Cong., 1st Sess. 337, reprinted in 1977 U.S. Code Cong. & Admin. News 1077, 1416. Thus, on its face, section 307(f) does not mandate success as a prerequisite to a fee award. The Supreme Court has held, however, that Congress did not by this broad standard intend to authorize fees for parties that were wholly unsuccessful on the merits. Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Similarly, this circuit has determined that parties are not entitled to fees under section 307(f) for time spent on issues on which they were wholly unsuccessful. Sierra Club v. EPA, 769 F.2d 796, 802 (D.C.Cir.1985). Sierra Club derived this issue-by-issue approach from Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). There, in applying a “prevailing party” fee statute, the Supreme Court held that when" }, { "docid": "15630848", "title": "", "text": "degree of success on the merits, it argues, it is entitled to an award of attorney fees as a matter of law. We disagree. Ruckelshaus decided that it is not “appropriate” to award attorney fees to a party that achieved no success on the merits of its claims. 462 U.S. at -, 103 S.Ct. at 3276; see Northern Plains Resource Council v. EPA, 9 Cir., 1984, 734 F.2d 408. The Court held that Congress intended the “when appropriate” standard to permit awards to partially as well as fully prevailing parties. The Tribe invalidly infers from this holding that all parties who achieve some degree of success on the merits are not only eligible for, but are entitled to attorney fees. But Ruckelshaus dealt only with eligibility for, not with entitlement to, a statutory award. See 462 U.S. at -, n. 11, 103 S.Ct. at 3279-80, n. 11 (distinguishing permissive and mandatory statutory language); Sierra Club, 672 F.2d at 38 n. 8 (distinguishing issues of eligibility and entitlement). Nothing in Ruckel-shaus suggests that the Court meant to reject the rule that, under the “when appropriate” standard, an eligible party must make a substantial contribution to the goals of a statute to be entitled to attorney fees. The Tribe further argues that the proper standard for awarding attorney fees to prevailing parties is the standard adopted under the attorney fees provision of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b), 2000e-5(k), and the Civil Rights Attorneys’ Fees Act of 1976, 42 U.S.C. § 1988. But while the D.C. Circuit cases involve attorney fees provisions that are “identical” to 16 U.S.C. § 1540(g)(4), Ruckelshaus, supra, 462 U.S. at -, n. 1, 103 S.Ct. at 3276 n. 1, the Civil Rights statutes involve the different “prevailing party” statutory standard, under which a prevailing plaintiff “should ordinarily recover an attorney’s fees unless special circumstances would render such an award unjust,” Newman v. Piggie Park Enterprises, Inc., 1968, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263; but a prevailing defendant may get attorney fees only if the plaintiff’s action was frivolous;" }, { "docid": "1720512", "title": "", "text": "Opinion PER CURIAM. PER CURIAM: The Sierra Club and the Environmental Defense Fund (“EDF”), petitioners in Sierra Club v. Costle, 657 F.2d 298 (D.C.Cir.1981) (hereinafter Sierra Club), seek an award of attorneys’ fees for their participation in an unsuccessful appeal of certain Environmental Protection Agency (“EPA”) regulations, 44 Fed.Reg. 33580 (June 11, 1979), promulgated pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (1979 Supp. III). We find that under section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f), this is an “appropriate” case for the court to award attorneys’ fees. Prior to August, 1981 (when EPA apparently adopted a policy of blanket opposition to all petitions for attorneys’ fees by non-prevailing parties ), Sierra Club and EDF were actively engaged in negotiations with EPA over the amount of attorneys’ fees. Therefore, we hold here only that attorneys’ fees may be awarded to non-prevailing parties under section 307(f) and that such an award to Sierra Club and EDF in this case is appropriate, and we suggest that the parties resume their negotiations over the amount. If settlement proves impossible, the parties may return here for resolution of this matter. I. AUTHORITY UNDER SECTION 307(f) TO GRANT ATTORNEYS’ FEES TO NON-PREVAILING PARTIES Section 307(f) of the Clean Air Act provides that In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate. 42 U.S.C. § 7607(f) (emphasis added). An award of attorneys’ fees under the Clean Air Act is not limited to “substantially prevailing” parties. Compare 42 U.S.C. § 7607(f) with 5 U.S.C. § 552(a)(4)(E) (awards in FOIA cases available only to a complainant who has substantially prevailed). On its face, the statutory provision clearly permits the court to .award attorneys’ fees to prevailing, substantially prevailing, or non-prevailing parties in “appropriate” cases. The legislative history of section 307(f) confirms this reading and offers guidance in identifying “appropriate” cases. The House Report, H.R.Rep.No.294, 95th Cong., 1st Sess. 337 (1977), reprinted in 1977 U.S. Code Cong. & Adm.News 1077," }, { "docid": "4233207", "title": "", "text": "McGOWAN, Senior Circuit Judge: This petition for attorneys’ fees under section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f) (1982), seeks compensation for the petitioners’ attorneys’ work in Sierra Club v. Environmental Protection Agency, 719 F.2d 436 (D.C.Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984). The petitioners there sought from this court direct review of regulations proposed by the Environmental Protection Agency (EPA) to implement Congress’s 1977 amendments to the Clean Air Act, Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685 (codified at 42 U.S.C. § 7403 et seq. (1982)). The petitioners met with varying degrees of success on the various issues they brought before this court. The petitioners also successfully opposed the efforts of an intervenor to persuade the Supreme Court to grant a writ of certiorari. The government did not participate in the litigation before the Supreme Court. The petitioners here seek fees for their work before both this court and the Supreme Court, from the government and the intervenors, respectively. We grant the petitioners $51,360.52 in fees and costs from the government for' their work before this court, but deny them any fees from the intervenors. We treat first the request for fees against the government. The starting point for any calculation of attorneys’ fees is the “lodestar,” the product of a reasonable hourly rate and the number of hours reasonably expended on substantive issues on which the petitioner met the statutory threshold of success. See Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc). Next, we discuss whether there should be any enhancement of the lodestar in this case. We then decide the amount of fees due for the attorneys’ work on the fee petition. Finally, we discuss the inappropriateness of awarding the petitioners fees against the intervenors in this case. I Section 307(f) of the Clean Air Act provides in full: In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. 42 U.S.C. §" }, { "docid": "1722752", "title": "", "text": "in other statutes. It is still unclear, however, what the other criteria for determining whether an award of the costs of litigation should be made are. Given the ambiguity of the statute itself, we turn to its legislative history. B. Legislative History In its Report on the Clean Air Act Amendments of 1977 the House Committee on Interstate and Foreign Commerce stated that this provision would allow the award of attorneys’ fees and other costs “in the court’s discretion.” The House Report went on to state: The committee bill also contains express authority for the courts to award attorneys fees and expert witness fees in two situations. The judicial review proceedings under section 307 [§ 7607] of the act when the court determines such award is appropriate [sic]. In the case of the section 307 judicial review litigation, the purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court’s discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the “prevailing party”. In fact, such an amendment was expressly rejected by the committee, largely on the grounds set forth in NRDC v. EPA, 484 F.2d 1331, 1388 [sic] (1st Cir. 1973). In adopting this provision concerning fees, the committee intended to meet the requirement for specific authorization imposed by 28 U.S.C. sec. 2412 and by the Supreme Court’s ruling in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Assuming that the citation in the House Report was to page 1338, the passage which the House Report endorsed in Natural Resources Defense Council, Inc. v. EPA reads as follows: We are not impressed by the government’s argument that because some issues were decided adversely to petitioners each party should bear its own costs. The authorizing language of section 304(d) [i.e., § 7604(d)] permits an award “to any party, whenever the" }, { "docid": "3991411", "title": "", "text": "Opinion PER CURIAM. PER CURIAM: This case involves a dispute over attorneys’ fees that grows out of our decision in Kennecott Corp. v. EPA, 684 F.2d 1007 (D.C.Cir.1982). In that case, petitioners were partially successful in challenging EPA regulations governing the issuance of primary nonferrous smelter order (NSO) regulations. On June 13,1985, the original panel issued a brief per curiam order granting petitioners’ request for attorneys’ fees in the amount of $203,140. EPA petitioned for rehearing, and the court, acting en banc, vacated the panel’s order of June 13, 1985, and reassigned the case to the present panel for further consideration on the fees issue. EPA challenges petitioners’ fee request on several grounds. EPA argues that petitioners “completely lost” on two issues and should not recover fees for time spent addressing those issues. The agency also contends that the fee request should be further reduced because petitioners have inadequately documented their request and because various specific items in the request are “suspect.” Petitioners respond that no deduction should be made for the claims on which they were unsuccessful because overall they achieved “excellent results” and are therefore entitled to a “fully compensatory fee.” See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). Petitioners also contend that their fee request has been carefully documented and that market forces can be relied upon to substantiate the reasonableness of the specific items of the request challenged by EPA. We hold that petitioners are entitled to attorneys’ fees, but conclude that the fee amount ultimately awarded to petitioners must be reduced in light of poor documentation and petitioners’ lack of success on one issue. We then refer the remaining factual issues to a magistrate. I. Petitioners’ fee request is grounded on section 307(f) of the Clean Air Act, which provides: In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. 42 U.S.C. § 7607(f) (1982). While most fee statutes are limited to “prevailing” parties, see, e.g., 5 U.S.C." }, { "docid": "17167870", "title": "", "text": "corrective action on its own if given prior notice. . See Natural Resources Defense Council v. Environmental Protection Agency, 484 F.2d 1331, 1338 (1st Cir.1973) (purpose of fee and cost awards “is not mainly punitive”). . Without deciding the extent to which notice must be given for jurisdictional purposes as a prerequisite to the maintenance of a citizen suit under section 1365, we note that courts have taken a generally functional approach to notice, holding the requirement satisfied despite technical deficiencies where the agency had time to investigate and act on the matter in issue, free of judicial compulsion. See, e.g., Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton, 644 F.2d 995 (3d Cir. 1981); Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 243 (3d Cir.1980) (two days’ notice); Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir.1976) (functional approach to required recipients of notice under Clean Air Act’s parallel provision); Natural Resources Defense Council v. Callaway, 524 F.2d 79, 83-84 & n. 4 (2d Cir. 1975), cited with approval in Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 121 (1st Cir.1976); South Carolina Wildlife Federation v. Alexander, 457 F.Supp. 118 (D.S. C.1978). . 42 U.S.C. § 7604(d), the “citizen suit” section, continues to provide that “[t]he court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.” 42 U.S.C. § 7607(f), the “petition for review” section, was added in 1977 and reads: “In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate.” . In Montgomery Environmental Coalition v. Costle, 646 F.2d 595, 597 (D.C.Cir.1981) [Montgomery fees case], followed without comment in Natural Resources Defense Council v. Environmental Protection Agency, 703 F.2d 700 at 705 n. 10 (3d Cir.1983), the D.C. Circuit held that fees were unavailable under the Clean Water Act" }, { "docid": "1720513", "title": "", "text": "their negotiations over the amount. If settlement proves impossible, the parties may return here for resolution of this matter. I. AUTHORITY UNDER SECTION 307(f) TO GRANT ATTORNEYS’ FEES TO NON-PREVAILING PARTIES Section 307(f) of the Clean Air Act provides that In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate. 42 U.S.C. § 7607(f) (emphasis added). An award of attorneys’ fees under the Clean Air Act is not limited to “substantially prevailing” parties. Compare 42 U.S.C. § 7607(f) with 5 U.S.C. § 552(a)(4)(E) (awards in FOIA cases available only to a complainant who has substantially prevailed). On its face, the statutory provision clearly permits the court to .award attorneys’ fees to prevailing, substantially prevailing, or non-prevailing parties in “appropriate” cases. The legislative history of section 307(f) confirms this reading and offers guidance in identifying “appropriate” cases. The House Report, H.R.Rep.No.294, 95th Cong., 1st Sess. 337 (1977), reprinted in 1977 U.S. Code Cong. & Adm.News 1077, 1416, states: In the case of the section 307 judicial review litigation, the purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court’s discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the “prevailing party.” In fact, such an amendment was expressly rejected by the committee, largely on the grounds set forth in NRDC v. EPA, 484 F.2d 1331, 1388 (1st Cir. 1973). The passage from Judge Campbell’s opinion in National Resources Defense Council v. Environmental Protection Agency, 484 F.2d 1331, 1338 (1st Cir. 1973) (hereinafter NRDC), endorsed in the House Report, reads: The purpose of an award of costs and fees is not mainly punitive. It is to allocate the costs of litigation equitably, to encourage the achievement of statutory goals. When the government is attempting to carry out a program" }, { "docid": "17167857", "title": "", "text": "interpreted in the same way. Cf. Natural Resources Defense Council v. Train, 510 F.2d 692, 699-702 (D.C.Cir.1975). Our conclusion, moreover, is reinforced by the assumption that Congress would not make a distinction with so little rational basis. For all of these reasons we therefore follow our own Clean Air precedent and apply it to the Clean Water Act. This is not quite the end of the issue. The question remains whether the fees authorized in connection with petitions for review cover all issues or, as certain language in our NRDC I decision suggests, are confined to the same kinds of issues as could have been brought under the citizen suit section, 33 U.S.C. § 1365(a), i.e., issues involving “a failure by the Administrator to perform any act or duty under this chapter which is not discretionary.” 33 U.S.C. § 1365(a)(2). In NRDC I, we noted that the “essence” of NRDC’s petition for review was its claim that the Administrator had breached certain nondiscretionary duties. 484 F.2d at 1335. Nothing in our decision, however, actually limited NRDC’s recovery to issues raisable in a citizen suit, and our earlier opinion on the merits indicates that, whatever its “essence”, NRDC’s petition also raised issues of “sound discretion” outside the scope of the citizen suit section. See NRDC v. EPA, 478 F.2d 875, 884 (1st Cir. 1973) [NRDC I merits case]. We need not rely solely on NRDC I, however, for the Clean Air Act Amendments of 1977 suggest an answer. The amendments provide that “[i]n any judicial proceeding under this section [i.e., in any petition for review], the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate.” 42 U.S.C. § 7607(f). Nothing in this language limits attorneys’ fees to issues raisable in a citizen suit, or for that matter to violations of the Clean Air Act, and the amendments elsewhere state (42 U.S.C. § 7607(d)(9)(A)) that agency action may be reversed when “arbitrary, capricious, an abuse of discretion”, or, broadly, “otherwise not in accordance with law”. Inasmuch as the 1977" }, { "docid": "15400818", "title": "", "text": "ORDER In Northern Plains Resource Council v. EPA, 645 F.2d 1349 (9th Cir. 1981), we affirmed the decision of the EPA. Subsequent to our decision, Northern Plains Resource Council (NPRC) filed for an award of attorney’s fees pursuant to the Clean Air Act, § 307(f), 42 U.S.C. § 7607(f) (§ 307(f)). EPA opposes this request, primarily arguing that under the circumstances of this case an award of attorney’s fees would be inappropriate. DISCUSSION Section 307(f) provides that “in any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney’s and expert witness’s fees) whenever it determines that such an award is appropriate.” As EPA recognizes, Congress, by adopting this section of the Clean Air Act, did not intend to limit the award of attorney’s fees to the “prevailing party.” Instead, Congress sought to facilitate challenges of EPA decisions in order to insure that EPA fulfilled its designated function of preserving air quality. See Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639 F.2d 802, 804 (D.C.Cir.1981). We agree with the D.C. Circuit that in determining whether a party — prevailing or non-prevailing — can recover attorney’s fees under § 307(f) from the Government, the test is “whether in light of what was known . . . when the action was instituted, the action was of the type Congress sought to encourage when it authorized awards of attorneys’ fees.” Id. Applying this test in the instant case, we believe NPRC is entitled to an award of attorney’s fees. Contrary to EPA’s argument, at least two of the issues presented in this case had not been decided by this court prior to the institution of this suit. Moreover, the interest of certain NPRC members in preserving the value of their property which might have been decreased if the power plants were built would not have been sufficient incentive to encourage the expenditures required by a suit of this type. Because NPRC brought this suit to promote the quality of air resources, and because the suit presented issues important to the construction of the Clean Air" }, { "docid": "15630847", "title": "", "text": "non-prevailing issues, while noting that “success is, of course, not the only criterion”); Kaktovik, supra, 689 F.2d at 228 & n. 44 (“while prevailing vel non is not to be a conclusive factor, it may be a relevant consideration” in determining whether a party’s contribution is substantial); Florida Power & Light Co. v. Costle, 5 Cir., 1982, 683 F.2d 941, 943 (awarding fees to the prevailing party not automatically, but because result of suit will aid in the proper implementation and interpretation of the statute). We reject the Tribe’s first argument, that the district court chose the wrong one of two standards. As a second step, the Tribe argues that Ruckelshaus, in reversing the D.C. Circuit’s decision in Sierra Club that non-prevailing parties are eligible for attorney fees, also eliminated the “substantial contribution” standard for non-prevailing parties. The Tribe argues that the test of “appropriateness” under Ruckelshaus is simply whether the claimant achieved “some degree of success on the merits.” See Ruckelshaus, 462 U.S. at -, 103 S.Ct. at 3281. Because the Tribe had some degree of success on the merits, it argues, it is entitled to an award of attorney fees as a matter of law. We disagree. Ruckelshaus decided that it is not “appropriate” to award attorney fees to a party that achieved no success on the merits of its claims. 462 U.S. at -, 103 S.Ct. at 3276; see Northern Plains Resource Council v. EPA, 9 Cir., 1984, 734 F.2d 408. The Court held that Congress intended the “when appropriate” standard to permit awards to partially as well as fully prevailing parties. The Tribe invalidly infers from this holding that all parties who achieve some degree of success on the merits are not only eligible for, but are entitled to attorney fees. But Ruckelshaus dealt only with eligibility for, not with entitlement to, a statutory award. See 462 U.S. at -, n. 11, 103 S.Ct. at 3279-80, n. 11 (distinguishing permissive and mandatory statutory language); Sierra Club, 672 F.2d at 38 n. 8 (distinguishing issues of eligibility and entitlement). Nothing in Ruckel-shaus suggests that the Court meant" }, { "docid": "1720514", "title": "", "text": "1416, states: In the case of the section 307 judicial review litigation, the purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court’s discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the “prevailing party.” In fact, such an amendment was expressly rejected by the committee, largely on the grounds set forth in NRDC v. EPA, 484 F.2d 1331, 1388 (1st Cir. 1973). The passage from Judge Campbell’s opinion in National Resources Defense Council v. Environmental Protection Agency, 484 F.2d 1331, 1338 (1st Cir. 1973) (hereinafter NRDC), endorsed in the House Report, reads: The purpose of an award of costs and fees is not mainly punitive. It is to allocate the costs of litigation equitably, to encourage the achievement of statutory goals. When the government is attempting to carry out a program of such vast and uncharted dimensions, there are roles for both the official agency and a private watchdog. The legislation is itself complex and novel. Given the implementation dates, its early interpretation is desirable. For Judge Campbell, and apparently for Congress, it was not enough merely to consider “who won.” The benefits conferred by the litigation were an equally important consideration. The government here seeks to distinguish Sierra Club from NRDC, and thereby to pull this case beyond the purview of the plain language and the intent of the statutory provision, by arguing that the party awarded attorneys’ fees in NRDC prevailed on some, although not on all, issues. See Brief For The United States On The Issue of Attorneys’ Fees For Losing Parties Under 42 U.S.C. 7607(f) at 11. The passage from NRDC reprinted above cannot, however, be read so narrowly. It indicates that the relevant inquiry is whether the litigation — successful or not — furthered the goals of the Act. It was this general policy which Congress sought to codify in the" }, { "docid": "15400821", "title": "", "text": "attorney’s fees, NPRC’s motion was not untimely. Cf. Local Rule 14(g) (effective October 1, 1981, requests for attorney’s fees must be filed within 30 days of entry of judgment); cf. also Local Rule 13(b)(1)(E) (effective October 1, 1981, party must indicate in brief if attorney’s fees will be sought). We also refuse to reject NPRC’s motion on the ground that it does not specify the amount of attorney’s fees requested. Although the amount of attorney’s fees requested should generally be included in a motion for attorney’s fees, failure to specify the amount requested does not require denial of the motion. . See H.R.Rep.No.294, 95th Cong., 1st Sess. 337 reprinted in [1977] U.S.Code Cong. & Adm. News 1077, at 1416 (“The committee did not intend that the court’s discretion to award fees under [§ 307(f) ] should be restricted to cases in which the party seeking fees was the ‘prevailing party’ ”). . As we indicated in our opinion, the precise issue presented in this case relating to “commenced construction” had not been considered by this court in Montana Power Co. v. EPA, 608 F.2d 334 (9th Cir. 1979). Northern Plains, 645 F.2d at 1357 n.24. Nor had this court decided the issue of the applicability of new source performance standards prior to institution of this suit. The fact that other courts considered this issue prior to the release of our decision in no way affects NPRC’s entitlement to attorney’s fees. See Metropolitan Washington, 639 F.2d at 804. . EPA argues that if NPRC is awarded attorney’s fees, it is entitled to contribution from intervenor Montana Power Company. However, there is no indication that Congress sought to require a prevailing intervening party to indemnify the party challenging an EPA decision. Instead, § 307(f) simply evinces a willingness on the part of Congress to have the Government bear the cost of litigation brought to promote air quality." }, { "docid": "15991272", "title": "", "text": "extensions; (2) remove the language from 40 C.F.R. § 70.4(d)(2) purportedly authorizing the EPA to extend interim approvals beyond two years on a case-by-case basis; (3) initiate a ninety-day formal notice-and-comment process for interested parties to identify deficiencies in both fully approved and interim programs; and (4) provide responses to all comments received through the notice-and-comment process. The settlement agreement provided that if the EPA breached any of its promises, Petitioners could ask the court to lift the stay and set a new briefing schedule. The settlement agreement also obligated the parties to seek joint dismissal if, by December 1, 2001, the EPA had fulfilled its promises. Dismissal, the agreement stated, would “provide an opportunity for Sierra Club to petition [this] Court for attorneys’ fees within a reasonable period of time, which petition EPA may oppose.” In January 2002, after the EPA fulfilled its obligations under the settlement agreement, this court, at the parties’ request, dismissed the case. Acting pursuant to the settlement agreement and citing CAA section 307(f), 42 U.S.C. § 7607(f), Petitioners then filed a motion requesting attorney’s fees. Section 307(f) provides: “In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.” Id. Because the parties have agreed on the amount that the EPA will pay if this court rules for Petitioners, the only question before us is whether a fee award is appropriate in the first place. The EPA argues that section 307(f)’s “whenever ... appropriate” standard does not authorize fee awards to parties, such as Petitioners, whose litigation produces no court-awarded relief. According to Petitioners, their role as a catalyst in halting the EPA’s practice of serially extending interim approvals makes a fee award “appropriate.” II. Whether Petitioners’ role as a catalyst permits fee awards under section 307(f) turns on the meaning of two Supreme Court decisions. In Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983), the Supreme Court held that section 307(f)’s “whenever ... appropriate” standard prohibits awards to parties" }, { "docid": "4233254", "title": "", "text": "demanding criterion of success. We therefore of course apply a different standard from the Hensley Court’s in determining success once we have used the Hensley Court’s analysis to divide the case into its component issues. See infra p. 80?. . We are aware that this court did not undertake an issue-by-issue analysis in awarding fees under section 307(f) in Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C.Cir.1982) (per curiam). There, the court found that the \"number, complexity and frequent interrelationships of the legal problems presented by these consolidated cases as a whole obviates the need for an issue-by-issue explication of our decision to award attorneys’ fees.’’ Id. at 4 n. 16. This court decided Alabama Power Co. before the Supreme Court’s rulings in either Hensley or Ruckelshaus. The latter decision of the Supreme Court reversed Sierra Club v. Gorsuch, 672 F.2d 33 (D.C.Cir.1982), a case significantly relied upon in Alabama Power. In light of the Supreme Court’s decisions in Hensley and in Ruckelshaus, we believe that an issue-by-issue explication is proper in this case. . The petitioners request approximately 675 hours for Mr. Fox’s compensable time. Of those hours, about 200 are allocated to specific issues, leaving approximately 475 hours devoted to general issues. We subtract 30% of those 475 hours (143) as devoted to issues on which the petitioners did not substantially prevail, leaving 332 compensable hours for general tasks. . The courts have so far been skeptical of their authority to award fees against intervenors advancing non-frivolous positions. The Ninth Circuit has stated that section 307(f) \"simply evinces a willingness on the part of Congress to have the Government bear the cost of litigation brought to promote air quality,\" and denied efforts by the government to have an intervenor contribute to the payment of legal fees. See Northern Plains Resource Council v. EPA, 670 F.2d 847, 849 n. 4 (9th Cir.1982) (per curiam), vacated and remanded, -U.S.-, 104 S.Ct. 54, 78 L.Ed.2d 73 (1983), on remand 734 F.2d 408 (9th Cir.1984) (per curiam) (holding that in light of Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct." }, { "docid": "17167871", "title": "", "text": "1975), cited with approval in Massachusetts v. U.S. Veterans Administration, 541 F.2d 119, 121 (1st Cir.1976); South Carolina Wildlife Federation v. Alexander, 457 F.Supp. 118 (D.S. C.1978). . 42 U.S.C. § 7604(d), the “citizen suit” section, continues to provide that “[t]he court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.” 42 U.S.C. § 7607(f), the “petition for review” section, was added in 1977 and reads: “In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate.” . In Montgomery Environmental Coalition v. Costle, 646 F.2d 595, 597 (D.C.Cir.1981) [Montgomery fees case], followed without comment in Natural Resources Defense Council v. Environmental Protection Agency, 703 F.2d 700 at 705 n. 10 (3d Cir.1983), the D.C. Circuit held that fees were unavailable under the Clean Water Act in petitions for review brought under 33 U.S.C. § 1369. The court simply noted the Clean Air attorneys’ fee amendment and observed that “[n]o comparable change” had been made in the Clean Water Act. While this position is a reasonable one, our reading of the detailed legislative history convinces us that that was not what Congress intended. Congress amended the Clean Air Act specifically to overrule the D.C. and Fifth Circuit decisions in NRDC II and III. Since the parallel provisions of the Clean Water Act had not yet been construed, there was no need to amend them, and no fair inference can be drawn that Congress intended by its inaction on the Water Act to preclude fees in petitions for review brought under 33 U.S.C. § 1369. If anything, Congress might well have assumed that, in light of its disapproval of NRDC II and III, the reasoning of those cases would not be extended to the Clean Water Act. In addition, it seems unreasonable to us to expect that every time Congress clarifies its" }, { "docid": "14803561", "title": "", "text": "nitrogen oxides (“NOx”). The revisions were to be based upon state-specific NOx emissions “budgets” established by the EPA. For its part, INGAA contended that the EPA, in its determination of the state NOx budgets, did not provide adequate notice and opportunity for comment on the control level assumed for large stationary internal combustion (“IC”) engines (hereinafter referred to as the “control level” issue). Additionally, INGAA challenged the EPA’s definition of large IC engines (hereinafter referred to as the “cut-off’ issue). We agreed with INGAA on the “control level” issue and remanded it to the EPA for further consideration, but we upheld the EPA on the “cut-off’ issue. Id. at 693-94. II. ANALYSIS INGAA now seeks an award of attorneys’ fees pursuant to Section 307(f) of the Clean Air Act, which provides: In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. 42 U.S.C. § 7607(f). In oui discussion below, we consider INGAA’s fee petition and make certain deductions from it in light of the “reasonable” and “appropriate” standards set forth in the statute. Fees under Section 307(f). The EPA argues that INGAA is not entitled to attorneys’ fees in this matter because it did not achieve a sufficient degree of success in Michigan. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 693-94, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983); see also Sierra Club v. EPA, 769 F.2d 796, 800 (D.C.Cir.1985). Of the two challenges made by INGAA to the EPA’s NOx SIP Call, the EPA argues that one, the IC engine “cutoff’ issue, was completely rejected by the Court, while the other, the IC engine “control level” issue, was remanded, without being vacated, for further consideration by the EPA and was therefore a purely procedural victory insufficient to justify an award of fees. The EPA further argues that even if it were to be assumed that INGAA is eligible to receive a fee award on the “control level” issue, since it lost on the “cut-off’ issue then any fee award should" }, { "docid": "14481517", "title": "", "text": "uncertainty in favor of granting ICO’s request. It reasoned that, due to the complex and technical nature of the case, it was necessary for ICO’s attorneys to consult with outside experts, even if those experts did not ultimately testify. RCRA provides that the court “may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.” 42 U.S.C. § 6972(e). Honeywell submits that, since non-testifying experts are neither attorneys nor expert witnesses, a prevailing party may not be reimbursed for the costs of their time. We have held that the fees of non-testifying experts are compensable in contempt proceedings, see Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942-43 (3d Cir.1995), but we have not yet determined whether a prevailing party is entitled to compensation for the costs of non-testifying experts under a fee-shifting statute. The circuit caselaw is, for the most part, not on point, and is a mixed bag. The Court of Appeals for the District of Columbia Circuit addressed this question in a case involving a fee award under a provision of the Clean Air Act, 42 U.S.C. § 7607(d), which is virtually identical to the statute at issue here. See Sieira Club v. E.P.A., 769 F.2d 796, 812 (D.C.Cir.1985). In Sierra Club, the Court concluded that a party could not be reimbursed for the cost of hiring a non-testifying expert. It observed: Mr. Lazaro [the non-testifying expert] is obviously not an attorney. He is also not an “expert witness,” since review of the regulations was undertaken in this case on the administrative record without any new hearings before this or any other court. Cf. Asarco, Inc. v. EPA 616 F.2d 1153, 1157-61 (9th Cir.1980) (allowing limited use of expert testimony before District Court in reviewing order by EPA). This leaves only the general rubric of “costs” under which to compensate petitioners for making use of Mr. Lazaro’s services. Those services do not fall under the traditional concept of costs.... Id.; see also Natural Resources Defense Council," }, { "docid": "4233255", "title": "", "text": ". The petitioners request approximately 675 hours for Mr. Fox’s compensable time. Of those hours, about 200 are allocated to specific issues, leaving approximately 475 hours devoted to general issues. We subtract 30% of those 475 hours (143) as devoted to issues on which the petitioners did not substantially prevail, leaving 332 compensable hours for general tasks. . The courts have so far been skeptical of their authority to award fees against intervenors advancing non-frivolous positions. The Ninth Circuit has stated that section 307(f) \"simply evinces a willingness on the part of Congress to have the Government bear the cost of litigation brought to promote air quality,\" and denied efforts by the government to have an intervenor contribute to the payment of legal fees. See Northern Plains Resource Council v. EPA, 670 F.2d 847, 849 n. 4 (9th Cir.1982) (per curiam), vacated and remanded, -U.S.-, 104 S.Ct. 54, 78 L.Ed.2d 73 (1983), on remand 734 F.2d 408 (9th Cir.1984) (per curiam) (holding that in light of Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983), fees could not be awarded even against the government). Our own District Court has held that section 505(d) of the Clean Water Act — a provision similar to that at issue here, compare 33 U.S.C. § 1365(d) (1982) with 42 U.S.C. § 7607(f) (1982) —does not authorize the award of fees against intervenors. Natural Resources Defense Council v. Administrator, Civ. Action Nos. 75-1698 et al., slip op. at 4-8 (D.D.C. June 20, 1984), appeal filed, Nos. 84-5566 et al. (D.C.Cir. Aug. 21, 1984). . We realize that when one private party seeks fees from another, one of them will be deterred from future litigation no matter what the decision of the court. If fees are awarded, the party liable for those fees will be deterred from future litigation. If no fees are awarded, the party seeking fees will be deterred. One could argue that, when both the party seeking and the party potentially liable for fees have advanced the implementation of the statute, the balance for determining whether to award" }, { "docid": "15991273", "title": "", "text": "filed a motion requesting attorney’s fees. Section 307(f) provides: “In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.” Id. Because the parties have agreed on the amount that the EPA will pay if this court rules for Petitioners, the only question before us is whether a fee award is appropriate in the first place. The EPA argues that section 307(f)’s “whenever ... appropriate” standard does not authorize fee awards to parties, such as Petitioners, whose litigation produces no court-awarded relief. According to Petitioners, their role as a catalyst in halting the EPA’s practice of serially extending interim approvals makes a fee award “appropriate.” II. Whether Petitioners’ role as a catalyst permits fee awards under section 307(f) turns on the meaning of two Supreme Court decisions. In Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983), the Supreme Court held that section 307(f)’s “whenever ... appropriate” standard prohibits awards to parties who lose on the merits. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Court held that a different statutory standard, one that authorizes fee awards to “prevailing part[ies],” prohibits awards to catalyst parties, defined as those who “achieve[] the desired result[s] because the lawsuit[s] brought about ... voluntary change[s] in the defendant[s’] conduct.” Id. at 601, 121 S.Ct. at 1838. Because Ruckelshaus did not involve a catalyst party, and because Buckhannon, which did, concerned a different statute, neither case addresses the precise issue we face here. Even so, the parties, though they read Ruckelshaus and Buckhannon quite differently, agree that the two cases are dispositive, as do we. Ruckelshaus began when this court found a fee award to be “appropriate” because the parties requesting fees, though having lost on the merits, had served as “expert and articulate spokesmen for environmental ... interests” without whom “the process of judicial review might have been fatally skewed.” Sierra Club" } ]

[ { "docid": "6900727", "title": "", "text": "the Deputy Federal Prohibition Administrator, and the district attorney thereupon announced that, in view of the rule of the Department respecting the disclosure of the name of an informant, they would elect not to have the witness testify as to the identity of such informant. At this point, upon renewal of the motion to strike that portion of the testimony, the court announced that it would not be stricken, but would be considered in the analysis of the entire evidence in the case, as to whether or not such evidence was sufficient to establish a probable cause for the search and seizure. It is plain, under the pronouncement of the Supreme Court in the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, that the search and seizure of an automobile without a warrant is justified under some circumstances, but that the doctrine is limited in its scope. In view of the strong dissenting opinion in that case, it would appear that the question was a controversial one among the justices of the high court. Mr. Justice Taft, after discussing various decisions of the Supreme Court construing the Search and Seizure Amendment, at page 149 of 267 U. S., 45 S. Ct. 280, 283, of the Carroll Case, uses the following language: “In none of the eases cited is there any ruling as to the validity under the Fourth Amendment of a seizure without a warrant of contraband goods in the course of transportation and subject to forfeiture or destruction. “On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a" } ]

[ { "docid": "22663521", "title": "", "text": "Cranch 339, appears to be an error in citation. See the discussion of exceptions in the Carroll opinion, 267 U. S. 132, 149 ff. “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” Carroll v. United States, 267 U. S. 132, 153-154. Mr. Justice Burton, concurring. I join in the opinion of the Court that there was probable cause for the search within the standards established in Carroll v. United States, 267 U. S. 132. Whether or not the necessary probable cause for a search of the petitioner’s car existed before the government agents caught up with him and said to him, “How much liquor have you got in the car this time?” and he replied, “Not too much,” it is clear, and each of the lower courts found, that, under all of the circumstances of this case, the necessary probable cause for the search of the petitioner’s car then existed. If probable cause for the search existed at that point, the search which then was begun was lawful without a search warrant as is demonstrated in the opinion of the Court. That search disclosed that a crime was in the course of its commission in the presence of the arresting officers, precisely as those officers had good reason to believe was the fact. The ensuing arrest of the petitioner was lawful and the subsequent denial of his motion to suppress the evidence" }, { "docid": "22366042", "title": "", "text": "shortly before midnight, stopped at the rear of the house and remained for half an hour. The headlights were extinguished; the officers heard what seemed to be heavy paper packages passing over wood. Doors slammed; petitioner drove the car away, apparently heavily loaded. The officers followed in another car. After going a few blocks petitioner stopped briefly at a filling station; then he drove towards his own residence two or three blocks further along. The officers followed. He turned into a garage a few feet back of his residence and within the curtilage. One of the pursuing officers left their car and followed. As petitioner was getting out of his car this officer approached, announced his official character, and stated he was informed that the car was hauling bootleg liquor. Petitioner replied, “just a little for a party.” Asked whether the liquor was tax paid, he replied that it was Canadian whiskey; also, he said it was in the trunk at the rear of the car. The officer opened the trunk and found eighty-eight bottles of distilled spirits in unstamped containers. He arrested petitioner and seized both car and liquor. The officer had no search warrant. At the trial counsel undertook to question the arresting officers relative to the source of the information which led them to observe petitioner’s actions. Objections to these questions were sustained and this is now assigned as error. Before trial petitioner’s counsel moved “to suppress all of the evidence obtained by the search made by the Revenue agents in the above entitled cause, together with all information obtained by reason of such search, and to grant an order requiring the agents to return all articles seized by reason of said search. . . .” In support of this he relied upon the facts above stated. Denial of this motion is said to be error. The exception in respect of transporting liquor not intended for sale found in the statute affords matter for affirmative defense. Queen v. United States, 64 App. D. C. 301; 77 F. 2d 780. In the circumstances the source of the information" }, { "docid": "21488183", "title": "", "text": "States, 319 F.2d 793 (5th Cir. 1963); United States v. Walker, 307 F.2d 250 (4th Cir. 1962). In the Walker case the Court stated at p. 252: However, this argument ignores the basic reason for the Carroll doctrine— that a vehicle by its very nature can be quickly moved out of the locality or jurisdiction in which the warrant might be sought and law enforcement thereby frustrated. This very practical consideration is present whether the vehicle is in transit on the open road or parked. The primary question that is raised and argued in the briefs is whether there was probable cause for the search and seizure. The defendants urge that the word of the prowler-turned-informer is not sufficiently reliable information to create probable cause for a search and seizure without a search warrant, and hence argue that the facts of this case do not fall within the Carroll exception to the constitutional rule that a search warrant must be obtained before a search may be made. However, this contention seems to ignore the fact that even though the information received from the informer may not have created probable cause for an exploratory search, or perhaps even for a search warrant, it certainly created probable cause for the subsequent investigation which the officers undertook. In the words of the Supreme Court in Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151 (1938) : In the circumstances the source of the information which caused him to be observed was unimportant to petitioner’s defense. The legality of the officers’ action does not depend upon the credibility of something told but upon what they saw and heard — what took place in their presence. After receiving this tip the officers first drove past the parked vehicle, apparently without stopping, and obtained the license number. Upon checking this information the officers learned that the license plates on the vehicle had been issued to a different vehicle. The officers apparently concluded that they would need additional assistance and immediately requested it from headquarters via their car radio. It is" }, { "docid": "22366044", "title": "", "text": "which caused him to be observed was unimportant to petitioner’s defense. The legality of the officers’ action does not depend upon the credibility of something told but upon what they saw and heard — what took place in their presence. Justification is not sought because of honest belief based upon credible information as in United States v. Blich, 45 F. 2d 627. Moreover, as often pointed out, public policy forbids disclosure of an informer’s identity unless essential to the defense, as, for example, where this turns upon an officer’s good faith. Segurola v. United States, 16 F. 2d 563, 565; Shore v. United States, 60 App. D. C. 137; 49 F. 2d 519, 522; McInes v. United States, 62 F. 2d 180. Considering the doctrine of Carroll v. United States, 267 U. S. 132 (see Husty v. United States, 282 U. S. 694), and the application of this to the facts there disclosed, it seems plain enough that just before he entered the garage the following officers properly could have stopped petitioner’s car, made search and put him under arrest. So much was not seriously controverted at the argument. Passage of the car into the open garage closely followed by the observing officer did not destroy this right. No search was made of the garage. Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt. The officers did nothing either unreasonable or oppressive. Agnello v. United States, 269 U. S. 20, 30; Wisniewski v. United States, 47 F. 2d 825, 826. The challenged judgment is Affirmed. Ch. 1, § 201, 48 Stat. 313, 316 (U. S. C., Title 26, § 1152a, 1152g)— “No person, shall . . . transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits. The provisions of this title shall not apply to— “(f) Distilled spirits not intended for sale or for use in the manufacture or production of any article intended for" }, { "docid": "22366043", "title": "", "text": "of distilled spirits in unstamped containers. He arrested petitioner and seized both car and liquor. The officer had no search warrant. At the trial counsel undertook to question the arresting officers relative to the source of the information which led them to observe petitioner’s actions. Objections to these questions were sustained and this is now assigned as error. Before trial petitioner’s counsel moved “to suppress all of the evidence obtained by the search made by the Revenue agents in the above entitled cause, together with all information obtained by reason of such search, and to grant an order requiring the agents to return all articles seized by reason of said search. . . .” In support of this he relied upon the facts above stated. Denial of this motion is said to be error. The exception in respect of transporting liquor not intended for sale found in the statute affords matter for affirmative defense. Queen v. United States, 64 App. D. C. 301; 77 F. 2d 780. In the circumstances the source of the information which caused him to be observed was unimportant to petitioner’s defense. The legality of the officers’ action does not depend upon the credibility of something told but upon what they saw and heard — what took place in their presence. Justification is not sought because of honest belief based upon credible information as in United States v. Blich, 45 F. 2d 627. Moreover, as often pointed out, public policy forbids disclosure of an informer’s identity unless essential to the defense, as, for example, where this turns upon an officer’s good faith. Segurola v. United States, 16 F. 2d 563, 565; Shore v. United States, 60 App. D. C. 137; 49 F. 2d 519, 522; McInes v. United States, 62 F. 2d 180. Considering the doctrine of Carroll v. United States, 267 U. S. 132 (see Husty v. United States, 282 U. S. 694), and the application of this to the facts there disclosed, it seems plain enough that just before he entered the garage the following officers properly could have stopped petitioner’s car, made search" }, { "docid": "22681660", "title": "", "text": "the arrest, and had arrested him in 1922 and 1928 for violations of the National Prohibition Act, both arrests resulting in conviction and the second in imprisonment. On the day of petitioners’ arrest, the witness had received information over the telephone that Husty had two loads of liquor in automobiles of a particular make and description, parked in particular places on named streets. The witness- was well acquainted with his informant, having known him for about eight years, and had come in frequent contact with him in business and socially. The same person had given similar information to the witness before, which had always been found to be reliable. The officer believed the information, and, acting upon it, found one of the cars'described, at the point indicated, and unattended. Later, petitioners and a third man entered the car. Husty had started it when he was stopped .by the officers. Laurel and the third man fled, and the latter escaped. The officers, believing that the car contained intoxicating liquor, searched it, and found eighteen cases of whiskey. The Fourth Amendment does not prohibit the search, without warrant, • of an automobile, for liquor illegally transported or possessed, if the search is upon probable cause; and arrest for the transportation or possession need not precede the search. Carroll v. United States, 267 U. S. 132. We think the testimony which we have summarized is ample to establish the lawfulness of the present search. To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U. S. 435, 441; Carroll v. United States, supra. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. See Dumbra v. United States, supra; Stacey v. Emery, 97 U. S. 642, 645. Here the information, reasonably believed by the officer to be reliable, that Husty, known to him to have" }, { "docid": "2206761", "title": "", "text": "United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, that the officer is not limited to what he sees, hears, or smells at the time of the search, but he may rely upon any “convincing informátioh. that he may previously have received as to the use being made of” the automobile. If, in the ease at bar, the officer should be limited to what he saw, heard, or smelled on the day of the seizure, it could hardly be said that he had anything more than mere suspicion upon which to proceed, since the defendant’s conduct was entirely consistent with innocence, and the officer did not see the liquor, nor did his sense of hearing or smell enable him to know that liquor was in the car. On the other hand, what the officer saw on that morning, taken in connection with information he had previously received both from his informant and' from his own observation and the exercise of his own faculties, would certainly warrant a man of reasonable caution in believing that intoxicating liquor was being transported. The question, therefore, is whether and to what extent the agent could rely upon information which he had received in the written communication and in his interview with the writer. While it is true that in the Carroll case, supra, the convincing information previously acquired had been obtained by the agents at first hand and not through an informant, and, while in two recent cases in this circuit [Lafazia et al. v. United States,” 4 F.(2d) 817; Segurola v. United States, 16 F.(2d) 563] the agents had evidence of probable cause apart from confidential communications, I do not regard these eases as conclusive against the government in the case at bar. If the confidential information was found to be so reliable as to justify a prudent man in acting upon it, there is no reason why such communication should be wholly excluded from consideration. In the instant ease, not only did the agent take rea^ sonable steps to satisfy himself as" }, { "docid": "22658027", "title": "", "text": "was hauling bootleg liquor. Petitioner replied, ‘just a little for a party.’ Asked whether the liquor was tax paid, he replied that it was Canadian whiskey; also, he said it was in the trunk at the rear of the car. The officer opened the trunk and found ....”. 305 U. S., at 253. The Court held: “Considering the doctrine of Carroll v. United States, 267 U. S. 132 . . . and the application of this to the facts there disclosed, it seems plain enough that just before he entered the garage the following officers properly could have stopped petitioner’s car, made search and put him under arrest. So much was not seriously controverted at the argument. “Passage of the car into the open garage closely followed by the observing officer did not destroy this right. No search was made of the garage. Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt. The officers did'nothing either unreasonable or oppressive. Agnello v. United States, 269 U. S. 20, 30; Wisniewski v. United States, 47 F. 2d 825, 826 [CA6 1931].” 305 U. S., at 254-255; Both Agnello, at the page cited, and Wisniewski dealt with the admissibility of evidence seized during a search incident to a lawful arrest. It is frequently said that occupied automobiles stopped on the open highway may be searched without a warrant because they aré “mobile,” or “movable.” No other basis appears for Mr. Justice White’s suggestion in his dissenting opinion that we should “treat searches of automobiles as we do the arrest of a person.” Post, at 527. In this case, it is-, of course, true that even though Coolidge was in jail, his wife was miles away in the company of two plainclothesmen, and the Coolidge property was under the guard of two other officers, the automobile was in a literal sense “mobile.” A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility. First, a good number of the containers that the police" }, { "docid": "1926010", "title": "", "text": "in preparation for trial, was a matter for the accused rather than the Government to decide.” Roviaro v United States, 353 US 53, 64, 1 L ed 2d 639, 647, 77 S Ct 623, 629 (1957). Indeed, the Supreme Court noted in the Roviaro case, at page 60: “. . . Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.” [Emphasis supplied.] And in Scher v United States, 305 US 251, 83 L ed 151, 59 S Ct 174 (1938), the same Court remarked, at page 254: “Moreover, as often pointed out, public policy forbids disclosure of an informer’s identity unless essential to the defense as, for example, where this turns upon an officer’s good faith.” [Emphasis supplied.] In United States v Keown, 19 F Supp 639 (WD Ky) (1937), involving facts surprisingly similar to these before us, Judge Hamilton concluded it was prejudicial error to refuse to disclose the identity of an informant who furnished confidential information leading in part to a search of accused’s vehicle. There, the defendant was known to the police officer as a bootlegger. The officer received confidential information that Keown would transport, on a date certain and in a described automobile, illicit whiskey. Defendant’s car, heavily laden, was observed and pursued on the proper day. It was compelled to stop, and a search disclosed the presence of 165 gallons of whiskey. The officer refused to disclose the name of" }, { "docid": "2639986", "title": "", "text": "not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. Appellant’s car was searched not as soon as it was stopped, but after a conversation in which appellant produced a bottle of unstamped whiskey, said that it was all he had, and that he had found it by the road. The fact that a known bootlegger was found within a notorious bootlegging area in the exact car which had been described to the officers, in possession of unstamped whiskey concerning which he gave a highly questionable explanation, constitutes reasonable cause within the purview of Brinegar v. United States, supra. The illegal possession was seen, and appellant’s unconvincing story was heard by the officers themselves. “The Fourth Amendment does not prohibit the search, without warrant, of an automobile, for liquor illegally transported or possessed, if the search is upon probable cause; and arrest for the transportation or possession need not precede the search.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 241, 75 L.Ed. 629. Whether the search of an automobile without a warrant is valid depends upon whether the search is made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the officer that the vehicle contains unstamped liquor. The question presented is not whether probable cause existed before the automobile was stopped and the officers talked with appellant. The question is whether the combination of what the officers saw with the reliable information they had received is probable cause to justify the search. The stopping of appellant’s car was not an arrest. No intent to apprehend appellant was shown and no move was made to take him into custody at that time. The officers did not open the car door when it was stopped, nor state that appellant was under arrest, nor touch his person. At the commencement of the search, which was after the car had been stopped, reasonable grounds existed for believing that a felony was" }, { "docid": "12401393", "title": "", "text": "S., 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032; Husty v. U. S., 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407; Kopp v. U. S., 7 Cir., 55 F.2d 878, and Stobble v. U. S., 7 Cir., 91 F.2d 69; and the information which causes the superior officer of the investigators to order them to investigate the premises is unimportant. The legality of the officer’s action docs not depend upon the credibility of something told, but upon what they saw, i. e., what took place in their presence. Scher v. U. S., 59 S.Ct. 174, 83 L.Ed. -, opinion by United States Supreme Court on December 5, 1938. From the facts in the possession of the officers and as shown by this record, we are of the opinion that they were justified in believing the truck was being used in the commission of a crime. The search was, therefore, on probable cause and not unreasonable, and the District Court did not err in denying the motion to suppress the evidence. It is next urged that the court erred in permitting the government to introduce evidence that a search warrant was issued for the premises at 734 West Ohio Street. It appears that immediately after defendant’s arrest, the warrant was served upon the garage and it was found to contain a 300-gallon still, vats, cans, boiler, pumps, pipes and fittings. The rule is of course elementary that when a defendant is on trial for one offense, irrelevant testimony tending to show the commission of a separate and distinct crime is not admissible. But there are exceptions to the rule which are so numerous that it has been said it is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions. One of the exceptions is that when the evidence tends to throw light upon a particular fact or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a reviewing court will not interfere with, unless it is clear that such" }, { "docid": "23229041", "title": "", "text": "way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of’ the issues and facts before trial. Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451. No fixed rule as to disclosure is justifiable. One must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense, taking into consideration the particular circumstances of each case. Roviaro v. U. S., 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639. In Scher v. U. S., 305 U.S. 251, 59 S.Ct. 174, 176, 83 L.Ed. 151, defense counsel undertook to question the arresting officers relative to the source of information which led them to observe the defendant’s actions. Objections to these questions were sustained. In affirming, the Supreme Court said: “In the circumstances the source of the information which caused him to be observed was unimportant to petitioner’s defense. The legality of the officers’ action does not depend upon the credibility of something told but upon what they saw and heard— what took place in their presence. Justification is not sought because of honest belief based on credible information * * *. Moreover, as often pointed out, public policy forbids disclosure of an informer’s identity unless essential to the defense * * We now take note of several cases that are frequently relied Upon in connection with the informer’s privilege, most of which have been urged upon us by the appellees. In Fleming v. Enterprise Box Co., D.C.S.D.Fla.1940, 36 F.Supp. 606, there was a complaint similar to ours but it failed to specify which employees failed to receive the proper wages. A bill of particulars was ordered under Rule 12 as to which employees were improperly compensated. The court properly held that the information was not privileged, but informer identity was not ordered nor was it sought. Fleming v. Bernardi, D.C., 1 F.R.D. 624 and Id., D.C.N.D.Ohio, 1941, 4 F.R.D. 270, involved the same type of wage violation. The defendant’s interrogatory requested the names of employees to whom the defendant allegedly paid wages" }, { "docid": "7699748", "title": "", "text": "facts as testified to by the officer were sufficient to constitute probable cause and justify the arrest, within the rule of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, to the effect that, if a search and seizure without a warrant are based upon the belief, reasonably arising out of circumstances known to the seizing officer, that is, upon probable cause that the automobile contains intoxicating liquor, then the search and seizure are valid. See, also, Husty v. United States, 282 U. S. 694, 700, 51 S. Ct. 240, 241, 75 L. Ed. 629, 74 A. L. R. 1407, involving facts very similar to those in the ease at bar, where the Supreme Court said: “To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U. S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032; Carroll v. United States, supra. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched.” Appellant complains that “the officer does not disclose the source of his informa tion, the name of his informant, nor does the informant disclose to the agent how he knew that this particular car was engaged in hauling liquor.” In the brief of appellant there appears the following statement, or admission: “Counsel for appellant realized that it was useless to inquire of the name of the informant since the law does provide that the agent need not reveal the name unless he cares to do so.” In United States v. Rogers (D. C.) 53 F.(2d) 874, 876, it is said: “The failure of the government to disclose by whom it was informed is immaterial. To inform is a statutory duty, and sound public policy forbids exposing informers to possible, even probable evil consequences.” It would seem that" }, { "docid": "12401392", "title": "", "text": "6,528 pounds, the containers having no revenue stamps affixed thereto. It was a Ford Model “A” truck, panel body, so painted that it was impossible to see the interior. Probable cause'has been defined as reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged. . It is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. It is enough if the apparent facts which tome to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched, and what constitutes probable cause must be determined from the standpoint of the officer with his skill and knowledge, rather than from the standpoint of the average citizen under similar circumstances, Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Dumbra v. U. S., 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032; Husty v. U. S., 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407; Kopp v. U. S., 7 Cir., 55 F.2d 878, and Stobble v. U. S., 7 Cir., 91 F.2d 69; and the information which causes the superior officer of the investigators to order them to investigate the premises is unimportant. The legality of the officer’s action docs not depend upon the credibility of something told, but upon what they saw, i. e., what took place in their presence. Scher v. U. S., 59 S.Ct. 174, 83 L.Ed. -, opinion by United States Supreme Court on December 5, 1938. From the facts in the possession of the officers and as shown by this record, we are of the opinion that they were justified in believing the truck was being used in the commission of a crime. The search was, therefore, on probable cause and not unreasonable, and the District Court did not err in denying the motion to suppress the evidence." }, { "docid": "2639987", "title": "", "text": "v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 241, 75 L.Ed. 629. Whether the search of an automobile without a warrant is valid depends upon whether the search is made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the officer that the vehicle contains unstamped liquor. The question presented is not whether probable cause existed before the automobile was stopped and the officers talked with appellant. The question is whether the combination of what the officers saw with the reliable information they had received is probable cause to justify the search. The stopping of appellant’s car was not an arrest. No intent to apprehend appellant was shown and no move was made to take him into custody at that time. The officers did not open the car door when it was stopped, nor state that appellant was under arrest, nor touch his person. At the commencement of the search, which was after the car had been stopped, reasonable grounds existed for believing that a felony was being committed, and the subsequent arrest was valid. Hearsay evidence is not to be eliminated as a basis, together with other circumstances, for probable cause justifying a search. United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032; Husty v. United States, supra. Here the case presents positive evidence of what was seen and heard by the officers at the place of the search, in addition to what they were told by the deputy sheriff. United States v. Heitner, 2 Cir., 149 F.2d 105, certiorari denied, 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432; Wisniewski v. United States, 6 Cir., 47 F.2d 825; One 1941 Ford % Ton Pickup Automobile Truck v. United States, 6 Cir., 140 F.2d 255; Brinegar v. United States, supra. Judgment affirmed. McALLISTER, Circuit Judge (dissenting). James Paul Gilliam appeals from a conviction on the charge of possessing and transporting distilled spirits" }, { "docid": "23229040", "title": "", "text": "the disclosure sought by the defendants is essential to assure a fair determination of the issues, with due regard being given to the defendants’ right to prepare their defense properly. We conclude that the defendants’ interest in being illumined as to informers is not strong enough to overcome the privilege in this instance. While we recognize that the discovery rules apply to actions in which the United States is a party, 4 Moore, Fed.Prac. ¶¶ 26.05, 26.25 [2] and that a trial is not a game of blindman’s buff, Johnson v. U. S., 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 we cannot overlook the fact that the modern discovery rules do not abolish the policy of withholding information based on a claim of privilege. True it is that the various instruments of discovery now serve as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to the issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of’ the issues and facts before trial. Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451. No fixed rule as to disclosure is justifiable. One must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense, taking into consideration the particular circumstances of each case. Roviaro v. U. S., 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639. In Scher v. U. S., 305 U.S. 251, 59 S.Ct. 174, 176, 83 L.Ed. 151, defense counsel undertook to question the arresting officers relative to the source of information which led them to observe the defendant’s actions. Objections to these questions were sustained. In affirming, the Supreme Court said: “In the circumstances the source of the information which caused him to be observed was unimportant to petitioner’s defense. The legality of the officers’ action does not depend upon the credibility of something told but upon what they" }, { "docid": "22681661", "title": "", "text": "whiskey. The Fourth Amendment does not prohibit the search, without warrant, • of an automobile, for liquor illegally transported or possessed, if the search is upon probable cause; and arrest for the transportation or possession need not precede the search. Carroll v. United States, 267 U. S. 132. We think the testimony which we have summarized is ample to establish the lawfulness of the present search. To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U. S. 435, 441; Carroll v. United States, supra. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. See Dumbra v. United States, supra; Stacey v. Emery, 97 U. S. 642, 645. Here the information, reasonably believed by the officer to be reliable, that Husty, known to him to have been engaged in the illegal traffic, possessed liquor in an automobile of particular description and location; the subsequent discovery of the automobile at the point indicated, in the control of Husty; and the prompt attempt of his 'two companions to escape when hailed by the officers, were reasonable grounds for his belief that liquor illegally possessed would be found in the car. The search was not unreasonable because, as petitioners argue, sufficient time elapsed between the. receipt by the officer of the information and the search of the car to have enabled, him to procure a search warrant. He could not know when Husty ' would come to the car or how soon it would be removed. In such circumstances we do not think the officers should be required to speculate upon the chances of successfully carrying out the search, after the delay and withdrawal from the scene of one or more officers which would have been necessary to procure a warrant. The search was, therefore, on probable cause, and not unreasonable; and the motion" }, { "docid": "22745848", "title": "", "text": "be made “upon hearsay evidence” was a case where the arrest was made after the defendant on seeing the officers tried to get away. Our cases cited by that court in support of the use of hearsay were Carroll v. United States, 267 U. S. 132; Dumbra v. United States, 268 U. S. 435; and Husty v. United States, 282 U. S. 694. But each of them was a case where the information on which the arrest was made, though perhaps not competent at the trial, was known to the arresting officer. Maghan v. Jerome, 67 App. D. C. 9, 88 F. 2d 1001; Pritchett v. Sullivan, 182 F. 480. See Ravenscroft v. Casey, 139 F. 2d 776. See State v. Gleason, 32 Kan. 245, 4 P. 363; State v. Smith, 262 S. W. 65 (Mo. App.), arising under state constitutions having provisions comparable to our Fourth Amendment. The Supreme Court of South Carolina has said: “Some things are to be more deplored than the unlawful transportation of whiskey; one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the laws of the land. There are two reasons for this: one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates. “In the instant case the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant’s person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. ... It is better that the guilty shall escape, rather than another offense shall be committed in the proof of guilt.” Town of Blacksburg v. Beam, 104" }, { "docid": "22658026", "title": "", "text": "of a search incident to arrest, but sought to justify the search on other grounds. Id., at 60. Mr. Justice Black’s opinion for the Court in Cooper reaffirmed Preston v. United States, 376 U. S. 364. 267 U. S., at 153. Id., at 156. United States v. Di Re, 332 U. S. 581, 586. Husty v. United States, 282 U. S. 694; Brinegar v. United States, 338 U. S. 160. A third case that has sometimes been cited as an application of Carroll v. United States, 267 U. S. 132, is Seher v. United States, 305 U. S. 251. There, the police were following an automobile that they had probable cause to believe contained a large quantity of contraband liquor. The facts were as follows: The driver “turned into a garage a few feet back of his residence and within the curtilage. One of the pursuing officers left their car and followed. As petitioner was getting out of his car this officer approached, announced his official character, and stated he was informed that the car was hauling bootleg liquor. Petitioner replied, ‘just a little for a party.’ Asked whether the liquor was tax paid, he replied that it was Canadian whiskey; also, he said it was in the trunk at the rear of the car. The officer opened the trunk and found ....”. 305 U. S., at 253. The Court held: “Considering the doctrine of Carroll v. United States, 267 U. S. 132 . . . and the application of this to the facts there disclosed, it seems plain enough that just before he entered the garage the following officers properly could have stopped petitioner’s car, made search and put him under arrest. So much was not seriously controverted at the argument. “Passage of the car into the open garage closely followed by the observing officer did not destroy this right. No search was made of the garage. Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt. The officers did'nothing either unreasonable or oppressive. Agnello v. United States, 269 U. S. 20, 30; Wisniewski" }, { "docid": "7699747", "title": "", "text": "license 217532, would be driven along the Pacific Highway from California into Oregon early that morning loaded with intoxicating liquor. The arresting officer awaited this car, and, after observing it and recognizing the license number as given to him, he stopped it, searched it, and found a quantity of intoxicating liquor therein. This testimony is controverted by that of appellant and his corroborating witnesses, to the effect that the officer was in fact awaiting the arrival of another ear and that he [the officer] said that it was simply by luck that he caught appellant transporting the liquor, because, he had no previous information regarding appellant’s car. In the brief of appellant it is said: “If your Honors deem that the facts set forth in Mr. Moon’s [the arresting officer’s] affidavit and in his testimony, in contradiction to the affidavits introduced by the appellant, are sufficient to constitute probable cause, then the appellant will have to abide by the judgment and sentence.” We are in accord with the decision of the trial court that the facts as testified to by the officer were sufficient to constitute probable cause and justify the arrest, within the rule of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, to the effect that, if a search and seizure without a warrant are based upon the belief, reasonably arising out of circumstances known to the seizing officer, that is, upon probable cause that the automobile contains intoxicating liquor, then the search and seizure are valid. See, also, Husty v. United States, 282 U. S. 694, 700, 51 S. Ct. 240, 241, 75 L. Ed. 629, 74 A. L. R. 1407, involving facts very similar to those in the ease at bar, where the Supreme Court said: “To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U. S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032; Carroll v. United States, supra. It" } ]

[ { "docid": "9771591", "title": "", "text": "we are unable to resolve the remaining issues germane to Chauncey’s basic constitutional contention. The allegations of his petition were sufficient to entitle him to an evi-dentiary hearing in the District Court. Chauncey has undertaken to present his legal contentions personally. In the circumstances, we think it appropriate that the District Court, upon remand, should appoint competent counsel to assist Chauncey in the prosecution of his ha-beas petition. Reversed and remanded. . The majority cannot accept the dissenting view that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is here applicable. This is not a suit for an injunction or a declaratory judgment, but a habeas corpus proceeding under 28 U.S.C. § 2241(c) (3). The record reveals that Chauncey has presented his Sixth Amendment claim in every level of the state’s judicial system, and that he has been denied relief by all. It' would surely be an exercise in futility to require him again to assert his claim in the Nevada courts, especially when the nature of the claimed right is examined: “Although federal habeas corpus relief is not ordinarily available to a state prisoner before trial, the peculiar nature of the right to a speedy trial requires an exception to this rule. The detrimental consequences of delay have been repeatedly catalogued, [citations omitted] Denial of a speedy trial adversely affects both the prisoner’s present circumstances and his ability to defend himself in the future. Only a present remedy can lift its dual oppressions.” Kane v. Virginia, 419 F.2d 1369, 1372 (4th Cir. 1970). CHAMBERS, Circuit Judge (dissenting): I dissent. To me, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, is applicable. Here we have a long series of writs and petitions which have effectively kept the State of Nevada from trying Chauncey. On one writ attempt in the state court in Nevada, Chauncey took no appeal. This was a deliberate by-pass. Chauncey surely could move in his criminal case in Nevada for dismissal for failure to prosecute. If denied, he could have his record on denial for future litigation. Here," } ]

[ { "docid": "3191977", "title": "", "text": "the magnitude required to justify the issuance of a federal injunction against the enforcement of a state criminal statute or the continuation of an ongoing criminal proceeding. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971); Beal v. Missouri Pacific Railroad, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941); Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926). As the Supreme Court said with respect to this issue in Younger v. Harris (401 U.S. at pp. 46, 47, 91 S.Ct. at pp. 751, 752): “In all of these eases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is ‘both great and immediate.’ Fenner, supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e. g., Ex parte Young, supra, 209 U.S. 123 at 145-147, 28 S.Ct. 441 at 447-449, 52 L.Ed. 714. Thus, in the Buck [Watson v. Buck] case, supra, 313 U.S. [313], at 400, 61 S.Ct. [962], at 966 [85 L.Ed. 1416], we stressed: “Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. ‘No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its" }, { "docid": "8969262", "title": "", "text": "law enforcement process” could be issued only “ ‘under extraordinary circumstances where the danger of irreparable loss is both great and immediate.’ ” Id. at 600, 95 S.Ct. at 1206, quoting from Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 70 L.Ed. 927 (1926). The Court again announced the twofold policy basis for non-intervention in state proceedings: 1) The recognition, both congressional and judicial, that federal courts should permit state courts to try state cases and that, if constitutional issues arise, the state court judges are fully competent to handle them, since they are bound by the Federal Constitution under Article VI. 2) The traditional doctrine that a court of equity should stay its hand when a movant has an adequate remedy at law. ' Both of these factors were reiterated by Mr. Justice Powell in an even more recent opinion, Schlesinger v. Councilman, 420 U.S. 738, 754-56, 95 S.Ct. 1300, 1311-12, 43 L.Ed.2d 591 (1975). See also Kugler v. Helfant, 421 U.S. 117, 123-25, 95 S.Ct. 1524, 1530-31, 44 L.Ed.2d 15 (1975). Although the court below did in its findings of fact note that state habeas relief was available to the plaintiff class with provision for appeal to the Appellate Division, there is no reference to the availability of this remedy in that part of the opinion which rejected the argument that principles of comity and fed eralism precluded the issuance of the order on review here. The court below found Younger abstention inappropriate primarily because in that case and in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) a federal court sought to prevent the prosecution of a state criminal trial, while the issue here involved the necessity of revisions in bail proceedings in order to prevent improper pre-trial confinement, which would not be an issue on a defendant’s trial on a criminal charge. The proposition that the principles underlying Younger are applicable only where the federal court is seeking to enjoin a pending state criminal prosecution is not supportable. Certainly this court in Wallace I and II did not agree." }, { "docid": "23334859", "title": "", "text": "that the mere existence of a “chilling effect [on First Amendment freedoms] should not by itself justify federal intervention.” Younger v. Harris, supra, 401 U.S. at 50, 91 S.Ct. at 753. “Only in cases of proven harass-\"] ment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” Perez v. Ledesma, supra, 401 U.S. 85, 91 S.Ct. 677. “Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. at 751. While these principles were stated in cases involving state criminal proceedings, I believe that they apply with equal force to proceedings regarding the conduct of members of the state bar. The state “has a legitimate interest in determining whether [an individual] has the qualities of character and the professional competence requisite to the practice of law.” Baird v. State Bar of Arizona, 401 U.S. 1, 7, 91 S.Ct. 702, 706, 27 L.Ed.2d 639 (1971). Indeed the state’s responsibility in these matters is primary. A lawyer to practice anywhere in the United States must first be admitted to the bar of one of the states. In New York, as in all of the states, the proper functioning of the judicial system depends upon the competence and integrity of the members of the bar and their compliance with appropriate standards of professional responsibility. Thus, when state courts do initiate an inquiry into an attorney’s conduct, they deal with a matter of such great importance to the state and its citizens that federal courts should be as slow to intervene in these proceedings as in state criminal proceedings. Erdmann urges that the presumption against federal court intervention" }, { "docid": "12955996", "title": "", "text": "may only be found where the state statute under which the party is prosecuted in state court is “ ‘flagrantly and patently violative of express constitutional prohibitions in every clause,’ or where the federal plaintiff demonstrates ‘bad faith [prosecution], harassment or any other unusual circumstance that would call for equitable relief.’ ” Casa Marie, 988 F.2d at 262, n. 9. In the present ease, the Court is faced with a situation similar to the one addressed in Conte. Neither side disputes that, in a subsequent prosecution of Scott under chapter 149, section 148, the DOL has a reasonable expectation of obtaining a valid conviction. See Perez v. Ledesma, 401 U.S. at 82, 83, 85, 91 S.Ct. at 674, 675, 676. In addition, after canvassing the record, the Court cannot conclude that the DOL’s prosecution was undertaken in bad faith, and without hope of obtaining a valid conviction. Moreover, Scott has not shown that the removal of the injunction would cause him the type of irreparable harm contemplated by the Younger Court. [T]he Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is “both great and immediate.” Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiffs federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751 (citation omitted). Simply put, Scott has not satisfied the above standard. In conclusion, the Court surmises that Scott has failed to demonstrate extraordinary circumstances — including irreparable harm, bad faith prosecution, harassment or any other unusual circumstance — that would call for equitable relief, and as a result, none of the exceptions to the Younger policy of abstention are applicable. Therefore, abstention from the criminal prosecution is the only appropriate action in this case. Accordingly, the bankruptcy court’s" }, { "docid": "16319026", "title": "", "text": "any other requirements for bringing a § 2254 post-trial habeas petition, and we otherwise express no opinion with respect to such a later petition. . In Fain v. Duff, the former Fifth Circuit explained that [t]he exhaustion of state remedies ... was [originally] left in the discretion of the district court, [but] 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. 488 F.2d 218, 223 (5th Cir.1973). See also Medberry, 351 F.3d at 1060 (\"The 1948 codification which created § 2254 merely codified judge-made restrictions on issuing the writ of habeas corpus as authorized under § 2241.’’). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. . In Younger, the Supreme Court set out three exceptions to the abstention doctrine: (1) there is evidence of state proceedings motivated by bad faith, (2) irreparable injury would occur, or (3) there is no adequate alternative state forum where the constitutional issues can be raised. Younger, 401 U.S. at 45, 53-54, 91 S.Ct. at 751, 755. . The Supreme Court has explored this exception more fully in several decisions since Younger. In Kugler v. Helfant, 421 U.S. 117, 123-25, 95 S.Ct. 1524, 1530-31, 44 L.Ed.2d 15 (1975), the Court stated: Although the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution alone do not constitute \"irreparable injury\" in the \"special legal sense of that term,” [Younger, 401 U.S.], at 46, 91 S.Ct., at 751, the Court in Younger left room for federal equitable intervention in a state criminal trial where there is a showing of \"bad faith” or \"harassment” by state officials responsible for the prosecution, id.., at 54, 91 S.Ct., at 755, where the state law to be applied in the criminal proceeding is \" 'flagrantly and" }, { "docid": "3617795", "title": "", "text": "eliminated by his defense against a single criminal prosecution. This principle necessarily requires the application of exhaustion requirements in habeas corpus proceedings that raise similar state-federal issues. Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). In our view, the decisions involving two-state situations, Kane v. State of Virginia, 419 F.2d 1369 (4th Cir. 1970) and Chauncey v. Second Judicial District Court, 453 F.2d 389 (9th Cir. 1971), referred to in the opinion below, furnish no real basis for thinking that Younger v. Harris is not directly applicable. In both suits, a prisoner who was in custody in one state after conviction petitioned for habeas in order to obtain a speedy trial in another state of a different criminal charge. Kane, however, was decided by the Fourth Circuit before the Supreme Court handed down its decision in Younger. Perhaps the full impact of the Younger opinion was not yet felt when the Ninth Circuit in 1971 rendered its decision in Chauncey. In any case, Chauncey is distinguishable since there the state courts had already rejected petitioner’s claim on the merits, and the New York courts have not here expressed any view on the merits of Mrs. Scranton’s petition. Moreover, it seems to us that the situation has been straightened out in the Ninth Circuit by the more recent holding in Drury v. Cox, 457 F.2d 764 (9th Cir. 1972) in which it was held that the rule of Younger v. Harris was applicable to a so-called two-state situation. Thus, we think it not likely that the Kane and Chauncey holdings have any real vitality in view of the decision in Younger, and a later decision, Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), to which we shall now turn. Mrs. Scranton relies heavily on Braden. In that case the Supreme Court granted the petitioner pre-trial habeas relief finding that he had exhausted his state remedies. His case differs from that of Mrs. Scranton, however, as Braden had sought the habeas writ in order to compel the" }, { "docid": "20688669", "title": "", "text": "— incident to any criminal prosecution.” Schlesinger v. Councilman, 420 U.S. 738, 754, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Yet “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution” do not constitute irreparable injury warranting a federal court’s intervention in an ongoing state prosecution, even if that prosecution imperils constitutional rights. Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). True, Younger abstention is grounded in considerations of federalism not implicated here. But the rule derives from “the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury.” Id. at 43-44, 91 S.Ct. 746; see Leaver v. Seymour, 822 F.2d 66, 70 (D.C.Cir.1987). Likewise, when a district court denies a federal criminal defendant’s pretrial motion, that denial ordinarily is not immediately appealable. The defendant must stand trial first. See Deaver, 822 F.2d at 70; 6 Wayne R. LaFave et al., Criminal Procedure § 27.2(b), at 9 (3d ed.2007). That general rule against interlocutory appeals encompasses selective-prosecution claims, which bear a close resemblance to Jarkesy’s class-of-one equal protection challenge. Notwithstanding that “[a] selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution,” United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), defendants assert such challenges in the course of the prosecution (usually pretrial), see 4 LaFave, supra, § 13.4(a), at 170-71, and courts of appeals address the matter only after a conviction, see, e.g., United States v. Mangieri, 694 F.2d 1270, 1272-76 (D.C.Cir.1982). It makes sense that Congress would design the Commission’s enforcement proceedings to work the same way. The rule against piecemeal criminal appeals has some exceptions — interlocutory appeals can lie over double jeopardy claims, for instance. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)." }, { "docid": "23334858", "title": "", "text": "and this is particularly true when a proceeding in one court system is alleged to infringe rights susceptible of vindication in the other. To minimize the potential for conflict between the state and federal systems, federal court jurisdiction has been intentionally limited. Only last Term, the Supreme Court reaffirmed the vitality of the comity doctrine, which commands federal court restraint in the face of state proceedings in progress. In a series of cases dealing with pending state criminal prosecutions, the Court held that, barring exceptional circumstances, federal courts should not enjoin such proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). The Court specifically noted that the mere existence of a “chilling effect [on First Amendment freedoms] should not by itself justify federal intervention.” Younger v. Harris, supra, 401 U.S. at 50, 91 S.Ct. at 753. “Only in cases of proven harass-\"] ment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” Perez v. Ledesma, supra, 401 U.S. 85, 91 S.Ct. 677. “Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. at 751. While these principles were stated in cases involving state criminal proceedings, I believe that they apply with equal force" }, { "docid": "861817", "title": "", "text": "of judicial restraint; they both envisage adequate state remedies; and, they both bar petitioners who seek to abort state prosecutions, prior to trial or final state review. In Younger v. Harris, supra, the Supreme Court specifically addressed the question of when federal courts should exercise their discretion to enjoin a pending state criminal prosecution. The court concluded that there must be irreparable injury, “both great and immediate,” before such an injunction is warranted. In so stating, the court wrote: “ . . . Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. . . . ” 401 U.S. at 46, 91 S.Ct. at 751. In Douglas v. City of Jeanette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943) the court stated: “ . . . Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent . It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. . . ” Just as in the habeas corpus context, the Supreme Court in the Younger setting did not define what would constitute an “extraordinary circumstance”. See Helfant v. Kugler, supra. We already know, however, that for purposes of pre-trial habeas corpus relief, courts have held that a" }, { "docid": "3617796", "title": "", "text": "courts had already rejected petitioner’s claim on the merits, and the New York courts have not here expressed any view on the merits of Mrs. Scranton’s petition. Moreover, it seems to us that the situation has been straightened out in the Ninth Circuit by the more recent holding in Drury v. Cox, 457 F.2d 764 (9th Cir. 1972) in which it was held that the rule of Younger v. Harris was applicable to a so-called two-state situation. Thus, we think it not likely that the Kane and Chauncey holdings have any real vitality in view of the decision in Younger, and a later decision, Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), to which we shall now turn. Mrs. Scranton relies heavily on Braden. In that case the Supreme Court granted the petitioner pre-trial habeas relief finding that he had exhausted his state remedies. His case differs from that of Mrs. Scranton, however, as Braden had sought the habeas writ in order to compel the state to try him, rather than to have his indictment dismissed, on the ground that the state had violated his right to a speedy trial. Braden had already moved for expedition of his trial in the state court and his petition had been denied. Thus, he had no other alternative remaining but to petition the federal court for habeas relief. To assert the denial of his speedy trial right at the trial, or on appeal, would in no way have ameliorated the harm that he sought to remedy, i. e., that the state had refused to try him with due speed. Here, Mrs. Scranton has state remedies available to her to secure the end she seeks. The Court in Braden expressly noted the distinction between the case before it and a situation such as we have here, and stated, 410 U.S. at 493, 93 S.Ct. at 1129, 35 L.Ed.2d at 451: We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely" }, { "docid": "12432865", "title": "", "text": "by the Court Ordered: the judgment appealed from is vacated and set aside, the petition for rehearing is granted, our opinions of November 12, 1970 are withdrawn and this case is remanded to the district court for a full evidentiary hearing, findings of fact and conclusions of law in the light of the principles announced by the Supreme Court in the above cited cases. GOLDBERG, Circuit Judge (specially concurring): Though I concur without reservation in the granting of the petition for rehearing and the order concomitant therewith, nonetheless I feel compelled to make the following observations because of the important and sensitive nature of the issues involved. In Younger and its companion cases the Supreme Court clarified what sever al commentators felt that Dombrowski and its progeny had left unclear: the proper role of a federal district court when asked to interfere with a pending state prosecution. Stressing “the fundamental policy against federal interference with state criminal prosecutions,” 401 U.S. at 46, 91 S.Ct. 746, at 751, 27 L.Ed.2d at 676, a majority of the Supreme Court held that a federal district court may not enjoin a pending state prosecution unless the plaintiff can prove the existence of “irreparable injury” that is “both great and immediate.” Id. Certain types of injury were found not to constitute the requisite “irreparable injury.” Specifically, “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution” did not by themselves justify federal intervention. Instead, “the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Id. at 46, 91 S.Ct. 746, at 751, 27 L.Ed.2d at 676-677. Moreover, despite intimations to the contrary in Dombrowski, where state proceedings are pending, the necessary “irreparable injury” is not established by the mere fact that a statute is facially overbroad or vague and thus “chills” protected expressive activity. To halt a pending state prosecution the plaintiff must show in addition “bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Id. at 54, 91 S.Ct. 746, at 755," }, { "docid": "12695500", "title": "", "text": "the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is ‘both great and immediate.’ Fenner [v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927], supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” This Court holds that in the present case there is no reason for it to inquire into whether or not the state prosecution is brought in bad faith for two reasons: (1) If there is any threat to the plaintiff’s rights by an alleged bad faith prosecution, he can seek to eliminate it in his defense in the state court “against a single criminal prosecution.” (2) Justice Black’s comment about “bad faith” at the end of the Younger opinion must be read against the background that he was dealing with a California syndicalism statute directed against the spoken and the written word, a statute, the plaintiff contended, whose very existence and use by the prosecution inhibited Harris’ rights of free speech and press. It did not, as in the case at bar, involve a prosecution under long established state criminal statutes without First Amendment overtones. Justice Fortas, in his dissent in Cameron v. Johnson, 390 U.S. 611 at 623, 88 S.Ct. 1335, 1342, 20 L.Ed.2d 182, articulated this distinction as follows: “Dombrowski’s remedy is justified only when First Amendment rights, which are basic to our freedom, are imperiled by calculated, deliberate state assault. And those who seek federal intervention bear a heavy burden to show that the state, in prosecuting them, is not engaged in use of its police power for legitimate ends, but is deliberately invoking it to harass or" }, { "docid": "3617793", "title": "", "text": "N.Y.S. 2d 459, 313 N.E.2d 763 (1974); People v. Chirieleison, 3 N.Y.2d 170, 164 N.Y. S.2d 726, 143 N.E.2d 914 (1957). As long as her present lawyer stands by her side, it seems highly improbable that Mrs. Scranton will plead guilty and pursue the latter course, especially as she has from the beginning so steadfastly protested her innocence. Unfortunately for Mrs. Scranton, we are powerless to help her, unless we violate our trust, as there is no denying the fact that she has not exhausted her state remedies. Perhaps, if Solomon were here to hold the scales, he would say the judgment has been too long deferred. As one of the spiritual qualities of justice is mercy, the New York State authorities may some day be persuaded by the circumstances of this case that they can, without any loss of dignity, on their own motion have the indictment dismissed and call it a day. There is no occasion to clutter the reports with exhaustive citation of the many opinions written by District and Circuit judges on the subject of federal interference with state criminal proceedings. Standing firmly athwart the path to such interference is Justice Black’s brilliant opinion for the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The following part of this opinion, 401 U.S. at 46, 91 S.Ct. at 751, 27 L.Ed.2d at 676, forecloses the granting of relief to Mrs. Scranton: In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is “both great and immediate.” * * * Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be" }, { "docid": "12695499", "title": "", "text": "have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute “on its face” abridges First Amendment rights.” Counsel for the Plaintiff Turco argues, however, that Younger left in force the second “wing” of Dombrowski, because of Justice Black’s comment that “Appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” He urges that they are basing their suit on alleged bad faith, and this is all that is needed to support federal court interference with the state prosecution. However, the Court is satisfied that Justice Black had something much more specific in mind as necessary to support injunctive relief. After reviewing the history of the abstention doctrine in the federal courts, he noted (at age 751 of 91 S.Ct.): “In all of these cases the court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is ‘both great and immediate.’ Fenner [v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927], supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” This Court holds that in the present case there is no reason for it to inquire into whether or not the state prosecution is brought in bad faith for two reasons: (1) If there is any threat to the plaintiff’s rights by an alleged bad faith prosecution, he can seek to eliminate it in his defense" }, { "docid": "23334850", "title": "", "text": "respect not only from those licensed to practice before it but also from the public at large. It requires little vision to appreciate that if a state court were subject to the supervisory intervention of a federal overseer at the threshold of the court’s initiation of a disciplinary proceeding against its own officer, the state judiciary might suffer an unfair and unnecessary blow to its integrity and effectiveness. The conclusory charges of Erdmann’s complaint and supporting papers fail to set forth facts establishing any likelihood of success on the merits or the existence of irreparable injury, which must be shown before injunctive relief may issue. Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969); Clairol Inc. v. Gillette Co., 389 F.2d 264, 265 (2d Cir. 1968). The Appellate Division’s institution of disciplinary proceedings against him admittedly represents the exercise of a function exclusively vested in it and falls far short of the Dombrowski-type campaign of harassment and ^‘official lawlessness” described by the Supreme Court in Younger as the kind of exceptional or extraordinary circumstances warranting federal intervention. Furthermore, there is an absence of any evidence of irreparable ^injury of the type warranting relief under Younger, which requires proof of injury substantially in excess of that normally considered sufficient to invoke equitable relief. In noting that to justify federal relief against a state prosecution the injury must be “both great and immediate,” Justice Black there stated: “Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Younger, v. Harris, 401 U.S. at 46, 91 S.Ct. at 751, 27 L.Ed.2d 669 (emphasis added). The injury alleged here is no more than that incidental to any single prosecution of a quasi-criminal nature. There is no reason to assume that" }, { "docid": "5668620", "title": "", "text": "proceeding that would follow Deaver’s indictment, but, of course, section 1292(b), by its terms, does not apply to criminal proceedings. And, as we have explained, the issue cannot be controlling in this suit since appellant may not raise the issue in the manner he did. D.H. GINSBURG, Circuit Judge, concurring: It is a “basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), quoted approvingly in Juluke v. Hodel, 811 F.2d 1553, 1557 (D.C.Cir.1987). The district court applied this rule in denying Michael Deaver’s request for a preliminary injunction preventing independent counsel Whitney North Seymour, Jr. from seeking an indictment from the grand jury. On appeal we must decide whether the district court abused its discretion in so holding. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975); Juluke v. Hodel, 811 F.2d at 1558. As the court has explained, see at 66, 67-68, Deaver challenges the constitutionality of the independent counsel provisions of the Ethics in Government Act, 28 U.S.C. §§ 49, 591-98 (1982 & Supp. Ill 1985), and he claims that, if indicted, he would suffer the “continuing destruction of his business,” “injury to his reputation and dignity,” and “the expenditure of substantial resources in his defense.” It is clear that this type of harm does not rise to the level of “irreparable injury”: Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751-52 (citation omitted). It is of no moment that" }, { "docid": "23334851", "title": "", "text": "by the Supreme Court in Younger as the kind of exceptional or extraordinary circumstances warranting federal intervention. Furthermore, there is an absence of any evidence of irreparable ^injury of the type warranting relief under Younger, which requires proof of injury substantially in excess of that normally considered sufficient to invoke equitable relief. In noting that to justify federal relief against a state prosecution the injury must be “both great and immediate,” Justice Black there stated: “Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Younger, v. Harris, 401 U.S. at 46, 91 S.Ct. at 751, 27 L.Ed.2d 669 (emphasis added). The injury alleged here is no more than that incidental to any single prosecution of a quasi-criminal nature. There is no reason to assume that Erdmann’s constitutional rights will not be protected by the Appellate Division, Third Department, to which the disciplinary proceedings against him have been transferred for adjudication, or, if further review becomes necessary, by the New York Court of Appeals. The competency of New York state courts to decide questions arising under the federal Constitution, by which we are all governed, is beyond question. In the unlikely event that both of these state appellate courts apply improper standards, Erdmann could seek Supreme Court view by petition for writ of certiorari. Undoubtedly because of general recognition of the advisability of permitting state courts first to act with respect to the delicate relationship between themselves and their officers, the traditional/ method of obtaining adjudication of federal constitutional questions arising out of such disciplinary proceedings has been by way of the state appellate court route to the Supreme Court rather than by direct federal intervention at the initial stages. See, e. g., Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Konigsberg v." }, { "docid": "861816", "title": "", "text": "the absence of a showing of bad faith, harassment or other ‘extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.’ Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir. 1973); see, Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971). Neither the Supreme Court nor this court has considered what extraordinary circumstances will justify federal intervention in a pending state prosecution. But the predicate of Younger v. Harris is an assumption that defense of the pending state prosecution affords an adequate remedy at law for the vindication of the federal constitutional right at issue. Thus, invocation of the “extraordinary circumstances” exception must bring into play the suggestion of an inability of the state forum to afford an adequate remedy at law. Although the doctrines of “habeas corpus-exhaustion” and “Younger-abstention” are not directly related, they share many characteristics in common. They are both predicated upon interests of federalism and comity; they both recognize exceptions for “extraordinary circumstances”; both doctrines are doctrines of judicial restraint; they both envisage adequate state remedies; and, they both bar petitioners who seek to abort state prosecutions, prior to trial or final state review. In Younger v. Harris, supra, the Supreme Court specifically addressed the question of when federal courts should exercise their discretion to enjoin a pending state criminal prosecution. The court concluded that there must be irreparable injury, “both great and immediate,” before such an injunction is warranted. In so stating, the court wrote: “ . . . Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. . . . ” 401 U.S. at 46, 91 S.Ct. at 751. In Douglas v. City of Jeanette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943) the court stated:" }, { "docid": "3014493", "title": "", "text": "prosecution, such as by loss of a realtor’s license or even deportation, but these injuries do not necessarily flow from the wrong sought to be enjoined, the violation of the discharge by using the criminal prosecution to collect a debt. These injuries will occur to the same extent if the prosecution is an entirely proper exercise of the State’s police power to punish theft and embezzlement. The Supreme Court has made clear that “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to plaintiffs federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971). In the context of a prosecution that debtor alleges is intended to enforce payment of a discharged debt, this Younger principle implies that either the threat or the prosecution itself must violate the discharge. This is certainly conceivable, because since the 1970 enactment of the discharge injunction debtors have a federally protected right to be free from threatened collection actions, and it evidences Congress’s conclusion that the availability of the defense of discharge is often insufficient protection. But to survive Younger abstention on such basis means that either the threat or the prosecution itself must violate the discharge injunction, ie., by directly threatening to enforce payment of a discharged debt. Here, the prosecution of the Debtor does not immediately violate the discharge injunction, since as discussed above it is not at all clear, or even likely, that a restitution order is either a fundamental purpose of the prosecution or a likely sanction in the event of conviction. Absent a circumstance where the mere threat of prosecution itself violates the debtor’s federally protected rights, akin to the situation in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), bankruptcy courts should heed Younger and abstain, “to permit state courts to try state cases free from interference by" }, { "docid": "3617794", "title": "", "text": "on the subject of federal interference with state criminal proceedings. Standing firmly athwart the path to such interference is Justice Black’s brilliant opinion for the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The following part of this opinion, 401 U.S. at 46, 91 S.Ct. at 751, 27 L.Ed.2d at 676, forecloses the granting of relief to Mrs. Scranton: In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is “both great and immediate.” * * * Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. This principle necessarily requires the application of exhaustion requirements in habeas corpus proceedings that raise similar state-federal issues. Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). In our view, the decisions involving two-state situations, Kane v. State of Virginia, 419 F.2d 1369 (4th Cir. 1970) and Chauncey v. Second Judicial District Court, 453 F.2d 389 (9th Cir. 1971), referred to in the opinion below, furnish no real basis for thinking that Younger v. Harris is not directly applicable. In both suits, a prisoner who was in custody in one state after conviction petitioned for habeas in order to obtain a speedy trial in another state of a different criminal charge. Kane, however, was decided by the Fourth Circuit before the Supreme Court handed down its decision in Younger. Perhaps the full impact of the Younger opinion was not yet felt when the Ninth Circuit in 1971 rendered its decision in Chauncey. In any case, Chauncey is distinguishable since there the state" } ]

[ { "docid": "22750966", "title": "", "text": "the final agency determination. See 8 C.F.R. § 3.1(e)(4).” Because this expe dited procedure was used, we review the IJ’s decision. Zhang v. United States DOJ., 362 F.3d 155, 159 (2d Cir.2004) (“Zhang-DO J”). We adhere to a number of general principles in reviewing the IJ’s credibility and sufficiency determinations. First, we will limit our review of the IJ’s decision to the reasons she actually articulates and ordinarily will not affirm based on evidence that may appear in the record but that was not relied on in the IJ’s decision because we cannot know how the IJ would have viewed evidence she did not analyze. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). To assume a hypothetical basis for the IJ’s determination, even one based in the record, would usurp her role. See generally, e.g., SEC v. Chenery, 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.”) Second, those findings that the IJ actually made “are conclusive unless a reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(a)(4)(B). The Supreme Court has stated that evidence that would compel a contrary conclusion indicates a lack of substantial evidence in support of an IJ’s findings. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38. Where a factual determination rests on a credibility finding, the court “afford[s] particular deference in applying the substantial evidence standard.” Zhang-INS, 386 F.3d at 73 (internal quotation marks omitted). However, “the fact that the [IJ] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire, 357 F.3d at 178. In fact, “using an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error,” Secaida-Rosales, 331 F.3d at 307, and we review de novo whether such a standard has been used. Third, in order to merit substantial evidence deference, “[t]he [IJ] must give specific, cogent" } ]

[ { "docid": "12003582", "title": "", "text": "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). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo review is required for questions of law and the application of law to undisputed fact. E.g., Secaidcir-Rosales, 331 F.3d at 307. II. Balachova The IJ found that Balachova was not credible. This finding was dispositive of all her claims; yet, Balachova did not point out any errors in the IJ’s adverse credibility finding on her appeal to the BIA. Although issue exhaustion is not jurisdictional, it is mandatory. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-24 (2d Cir.2007). Thus, we grant the government’s request to dismiss Balachova’s claims for failure to exhaust administrative remedies. III. Krasnoperov A. Credibility The basis of the IJ’s adverse credibility finding for Krasnoperov is very unclear. The only specific factor she cited with reference to credibility was a variance between Krasnoperov’s asylum application and his testimony. While Judge Holmes-Simmons did not identify the inconsistency in her credibility analysis, she had earlier stated that Krasnoperov testified that he had never filed a false report, but that his asylum statement indicated that he had been asked to rob villagers" }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews 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, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "22921776", "title": "", "text": "Finally, the BIA denied Aliyev withholding of removal or relief under the CAT. Aliyev both petitioned this Court for review and moved the BIA to reconsider its decision. On June 13, 2007, the BIA denied Ali-yev’s motion to reconsider, again concluding that the Stipulation did not contest the BIA’s prior findings concerning the nongovernmental actors. The decision stated that the Board had reviewed the alleged acts of the civilian Kazakhs when it reevaluated Aliyev’s claims but did not find them to be acts of persecution as contemplated by the Immigration and Nationality Act (“INA”), and therefore did not consider them in assessing the cumulative effect of multiple acts of harassment. Aliyev petitioned this Court for review of the BIA’s denial of his motion to reconsider. DISCUSSION A. Standard of Review “When the BIA issues an opinion, the opinion becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quotation marks omitted). In this instance, as the BIA “did not adopt the decision of the IJ to any extent, nor is the BIA’s per curiam opinion merely supplemental” to the IJ’s decision, id., we review the decision of the BIA alone. We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). The denial of a motion to reconsider is reviewed for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). B. Analysis To establish eligibility for asylum, an applicant must show that he or she is a refugee who has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution on one of these grounds. See 8 U.S.C. § 1101(a)(42); Island v. Gonzales, 412 F.3d 391, 394 (2d Cir.2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d cir.2007). While" }, { "docid": "12018555", "title": "", "text": "order to be considered' a refugee and therefore eligible for asylum, Alibasic must show that he has suffered past persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds should he be ordered to return to his native country. See 8 U.S.C. § 1101(a)(42). As discussed above, the IJ found that Alibasic had suffered from persecution in the past and the BIA adopted this finding arguendo. Past persecution, however, is “rarely sufficient in itself to entitle an applicant to asylum,” but it does “automatically give[] rise to a rebuttable presumption of a well-founded fear of future persecution.... ” Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). The Government can defeat this presumption “if ‘a preponderance of the evidence establishes that a change in circumstances in the applicant’s country of nationality has occurred such that the applicant’s fear is no longer well-founded.’ ” Id. (quoting Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.2002) (citing 8 C.F.R. § 208.13(b)(1)(i))). A well-founded fear is “a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there is only a slight, though discernible, chance of persecution.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (citations and internal quotation marks omitted). Where, as here, the BIA vacates the decision of the IJ, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We will assume, however, that Alibasic was a credible witness because the IJ found him to be such and the BIA did not disturb that finding. See id. at 271-72. 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). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406" }, { "docid": "23259750", "title": "", "text": "asylum application within 1 year of arriving in the United States” and that “[t]he record also supports the Immigration Judge’s adverse credibility and burden of proof findings.” As noted above, Zheng then filed a timely petition for review in this Court. ANALYSIS We have recently reiterated the relevant standards of review to be employed on this appeal: “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) (alteration and internal quotation marks omitted). We review the agency’s legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility determinations, 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 Shu Wen Sun v. BIA 510 F.3d 377, 379 (2d Cir.2007). Pinto-Montoya v. Mukasey, 540 F.3d 126, 129 (2d Cir.2008) (per curiam). In order to be considered a refugee and therefore eligible for asylum, the INA provides that Zheng must show that he has suffered past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds should he be ordered to return to his native country. See 8 U.S.C. § 1101(a)(42). The statute further provides that an individual, such as Zheng, who alleges that he has engaged in “resistance to a coercive population control program” may be eligible for relief as one who has been persecuted, or will be persecuted, on account of his political opinion. Id.; see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007) (en banc). Past persecution alone is “rarely sufficient in itself to entitle an applicant to asylum,” but it does “automatically give[ ] rise to a rebuttable presumption of a well-founded fear of future persecution.” Poradisova v. Gonzales, 420 F.3d 70, 78" }, { "docid": "22405336", "title": "", "text": "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). II. Santoso, relying on Mufied v. Mukasey, argues primarily that the IJ and the BIA did not adequately consider whether there exists a pattern or practice of persecution of ethnic Chinese or Catholics in Indonesia. See 508 F.3d 88, 91 (2d Cir.2007) (remanding where “[njeither the IJ nor the BIA appears to have considered Mufied’s claim that there is a pattern or practice of persecution of Christians in Indonesia”). Unlike Mufied, however, in Santoso’s case, the BIA explicitly noted that “[t]he discrimination and sporadic violence in various parts of Indonesia, as discussed by the Immigration Judge, do not establish that there is a pattern or practice of persecution against individuals similarly situated to the respondent.” J.A. at 3; see Mufied, 508 F.3d at 91 (noting that the BIA failed to supplement the IJ’s discussion of persecution and “appeared to base its denial of Mufied’s appeal on its finding that he had personally ‘experienced few problems’ ”). The fact that the BIA cited to the statute governing generally the burden of proof for withholding of removal," }, { "docid": "22710210", "title": "", "text": "be tortured if she is returned to Mali.” Id. DISCUSSION 7. Standard of Review 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, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). We review de novo questions of law and the application of law to undisputed fact. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review decisions by the BIA interpreting the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., according to the standard set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.: If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, ... the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that decisions of the BIA interpreting the INA are entitled to Chevron deference). And we give “substantial deference” to BIA decisions interpreting immigration regulations, Delgado v. Mukasey, 516 F.3d 65, 69 (2d Cir.2008), unless an interpretation is “plainly erroneous or inconsistent with the regulation,” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). See also Zken Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 262 (2d Cir.2006). II. Regulatory Framework and Merits of the Petitions for Review Pursuant to 8 U.S.C. § 1231(b)(3)(A), an" }, { "docid": "23108421", "title": "", "text": "to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir.2007) (stressing the importance of witness demeanor as a reason for appellate courts to give deference to a fact-finder’s analysis of testimony); see also Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). The IJ relied solely on his own finding of document fraud to reach the conclusion that Niang was not credible. The IJ acknowledged that he was not an “expert” on forensics, but this alone does not render his decision suspect. Though often helpful, an expert report will not be necessary in every case to support a finding that a document is fraudulent. An IJ is fully entitled to make findings concerning the authenticity of submitted evidence, based on her own examination and her professional analysis. Such findings will ordinarily merit deference. See, e.g., Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.2006). But we have refused to credit the IJ’s" }, { "docid": "22298386", "title": "", "text": "Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ’s reason for denying Passi’s withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s decision. 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); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed, for example, where the agency’s determination was “based on an inaccurate perception of the record, omitting potentially significant facts.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). We review de novo questions of law and the application of law to fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). The burden of proving eligibility for asylum rests on the applicant. 8 C.F.R. § 208.13(a). An applicant may qualify for asylum either because he has suffered past persecution or because he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). A fear of persecution may be “well-founded even if there is only a slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). This standard is considerably easier to meet than the standard for withholding of removal, which requires the applicant to establish that it is more likely than not that his “life or freedom would be threatened” on account of a protected ground. See 8 C.F.R. § 208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178" }, { "docid": "23108420", "title": "", "text": "returned to Mauritania. In one respect, however, the BIA seemed to go further than the IJ, noting “that the record indicates that the current situation in Mauritania has improved dramatically, lessening the likelihood of persecution.” Accordingly, the Board dismissed Niang’s appeal. This petition for review of the agency’s denial of Niang’s withholding and CAT claims followed. Discussion Where, as here, the BIA adopts the decision of the IJ, and supplements that decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir.2005). 1. Past Persecution A. The Adverse Credibility Finding The petition attacks the IJ’s findings that Niang submitted identity documents that were not genuine, and that he testified untruthfully about them. Finding various errors in the reasoning leading to the IJ’s adverse credibility decision, we vacate and remand that finding. This Court reviews the agency’s factual findings, including its adverse credibility determinations, 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). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey," }, { "docid": "12003581", "title": "", "text": "Krasnoperov had not participated in the rapes, the IJ found him to be a persecutor based on actions that he admitted. The IJ also found that Krasnoperov had not met his burden of proof because he failed to submit certain documents and other documents were not authenticated and/or not in conformance with Russian records. Judge Holmes-Simmons also found the evidence insufficient to support Balachova’s claim and noted that changes had occurred in Russia in the thirteen years since both petitioners left. Finally, she denied the petitioners’ CAT claims because they “failed to establish that it’s more likely than not they’d be subject to torture if returned to their native country.” Both petitioners appealed to the BIA, which summarily affirmed the results of the IJ’s opinion. DISCUSSION 1. Standard of Review Because the BIA summarily affirmed the IJ’s decision, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. E.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, 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). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo" }, { "docid": "22383467", "title": "", "text": "the IJ’s findings with respect to asylum and withholding of removal, but not the denial of CAT relief. The BIA adopted and affirmed the IJ’s decision. II. Jurisdiction We previously explained that “[ajliens admitted under [the Visa Waiver] program forfeit any right to challenge their removal, except that they may apply for asylum. Therefore, participants who do apply for asylum are processed in ‘asylum-only’ proceedings. Unless granted relief in those proceedings, the Visa Waiver applicant can be removed without further proceedings.” Kanacevic v. INS, 448 F.3d 129, 133 (2d Cir.2006) (internal citations omitted). In Kanacevic, we held that although the deni al of relief in “asylum-only” proceedings does not result in an actual removal order, it is the functional equivalent of a removal order, and we therefore have jurisdiction over Beskovic’s appeal under 8 U.S.C. § 1252(a)(1). Id. at 134-35. III. Standard of Review Where, as here, the BIA fully adopts the IJ’s decision, we review that decision. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the agency’s factual findings under the substantial evidence standard, overturning them only if a reasonable adjudicator would be compelled to reach a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Legal questions, and the application of law to fact, are reviewed de novo. See Secaida-Rosales, 331 F.3d at 307. When the BIA or IJ has failed to apply the law correctly, “we retain substantial authority to vacate BIA or IJ decisions and remand for reconsideration or rehearing.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 337 (2d Cir.2006); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). IV. Analysis A. Legal Standard The IJ determined that Beskovic’s arrests and physical abuse did not rise to the level of persecution. In reaching that conclusion, the IJ did not identify the legal standard on which he relied in assessing whether the treatment Beskovic experienced at the hands of Serbian police constituted persecution. We addressed the issue of what type of conduct constitutes persecution in Tian-Yong Chen v." }, { "docid": "12018556", "title": "", "text": "67 (2d Cir.2002) (citing 8 C.F.R. § 208.13(b)(1)(i))). A well-founded fear is “a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there is only a slight, though discernible, chance of persecution.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (citations and internal quotation marks omitted). Where, as here, the BIA vacates the decision of the IJ, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We will assume, however, that Alibasic was a credible witness because the IJ found him to be such and the BIA did not disturb that finding. See id. at 271-72. 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). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). Thus, “[d]espite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.” Poradisova, 420 F.3d at 77 (collecting cases). Our review is further guided by the principle that “this Court is not ignorant of indisputable historical events.” Xiao Xing Ni v. Gonzales, 494 F.3d 260, 272 (2d Cir.2007). In the context of this case the indisputable events, as recognized by the IJ, are that “religion and ethnicity are intertwined closely throughout Serbia Montenegro [sic], which was always the case. That was the problem with the war, that is why people were being killed, because of their religion and ethnicity.” (JA 162) We do not perceive that the Government would dispute this assessment. Rather, it is the Government’s assertion that “ [substantial evidence supports the [BIA’s] conclusion that, whether or not Alibasie established past persecution in Serbia-Montenegro, conditions in that country have changed ‘remarkably’ since his departure" }, { "docid": "22994127", "title": "", "text": "concerning the three previous instances of detention and mistreatment by the police as a basis for her adverse credibility determination. Based in part on her finding of adverse credibility and in part on her determination that Gjolaj failed to establish past persecution, the IJ denied his application. The BIA affirmed, without opinion. DISCUSSION Where, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision directly. See Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir.2006). We review the agency’s factual findings under the substantial evidence standard, reversing only if a reasonable adjudicator would be compelled to reach a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review legal questions, and the application of law to fact, de novo. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). When the BIA or IJ has failed to apply the law correctly, “we retain substantial authority to vacate BIA or IJ decisions and remand for reconsideration or rehearing.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 337 (2d Cir.2006). We recently clarified the standard for establishing a claim of past persecution in Beskovic v. Gonzales, 467 F.3d 223, 2006 WL 3013090 (2d Cir. Oct.24, 2006). There we emphasized “that a ‘minor beating’ or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground.” Id. at *3 (citing TianYong Chen v. INS, 359 F.3d 121, 128 (2d Cir.2004)); see also Ivanishvili, 433 F.3d at 341. In this case, the IJ appears to have applied a more restrictive standard than the one we identified in Beskovic and Chen. The IJ’s analysis of Gjolaj’s past persecution claim suffers from several other errors, as well. First, the IJ found that none of the three arrests, considered in isolation, constituted past persecution. We have held that “[ijncidents alleged to constitute persecution ... must be considered cumulatively,” and that “[a] series of incidents" }, { "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": "22958159", "title": "", "text": "persecution, thereby entitling Liu to a presumption of a well-founded fear of future persecution. In the absence of evidence rebutting Liu’s presumed well-founded fear of future persecution, the IJ granted Liu’s application for asylum. The Department of Homeland Security appealed the IJ’s asylum decision to the Board of Immigration Appeals. The BIA accepted the IJ’s credibility findings, but concluded that the IJ erred in holding that the mistreatment suffered by Liu rose to the level of persecution. Accordingly, the BIA vacated and reversed the IJ’s decision granting Liu’s asylum application. Liu now appeals. Under the circumstances of this case, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Alibasic v. Mukasey, 547 F.3d 78, 84-85 (2d Cir.2008). We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir.2008). The BIA did not err in concluding that Liu failed to demonstrate his eligibility for asylum on account of his alleged resistance to the family planning policy. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir.2007) (in banc). Liu argues that the BIA misapplied Beskovic v. Gonzales, ante, by failing to analyze whether the beating occurred in the context of his arrest, and that the harm he suffered on account of his resistance to the family planning policy constituted persecution because it occurred “in the context” of his arrest and detention. Although the BIA emphasized that Liu’s mistreatment did not occur during his two-day detention without explicitly analyzing a potential connection to the arrest, we think that is implicit in the overall ruling. Thus, we find no error in the BIA’s conclusion that Liu failed to establish persecution because substantial evidence supports the BIA’s finding that, prior to his arrest and detention by local police, he suffered only minor bruising from an altercation with family planning officials, which required no formal medical attention and" }, { "docid": "22613352", "title": "", "text": "the BIA, arguing that the IJ “erred in not finding Respondent’s testimony credible,” in that he “placed too much weight on unreasonably minor points.” The BIA dismissed the appeal, concluding that there was “no clear error in the Immigration Judge’s factual findings regarding the nature of the respondent’s past experiences in Pakistan, and the likelihood of his being harmed in the future.” In re Mohammad Zaman, No. [ AXX XXX XXX ] (B.I.A. Jan. 22, 2007). It also found that “[t]he respondent’s political experiences were rightfully called into question by the Immigration Judge.” Id. Zaman petitions for review of the BIA’s order. II. Discussion A. Standard of Review When the BIA does not expressly “adopt” the IJ’s decision, but “its brief opinion closely tracks the IJ’s reasoning,” this Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews 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, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). B. Diallo v. INS In Diallo, this Court found that, when evaluating the sufficiency of the evidence presented by an asylum candidate, an IJ must: (1) “decide explicitly” whether or not the candidate’s testimony was credible (without relying exclusively on the lack of corroborating evidence); and, if credible, (2) determine whether additional corroboration is nonetheless necessary for the candidate to meet his or her burden of proof. 232 F.3d at 290. This Court explained that an explicit credibility determination is important to ensure that an alien receives the “potential benefit” of succeeding on credible testimony alone, as well as to ensure that appellate review of such a determination is preserved. Id. at 287. Our review is" }, { "docid": "22670036", "title": "", "text": "to apply case-by-case review to Chinese nationals’ claimed fears of future persecution based on the births of two or more children, and we review in turn its conclusion that none of the three petitioners in these cases convincingly demonstrated that their professed fears were well founded. C. The Challenged Conclusions that No Petitioner Demonstrated an Objectively Reasonable Fear of Future Persecution Each petitioner argues that the BIA erred in concluding that he or she had failed to demonstrate an objectively reasonable fear of future forced sterilization if removed to China. To the extent petitioners challenge the Board’s assessment of competing evidence and its ultimate findings of fact, our review is necessarily deferential. “[W]e will not disturb a factual finding if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)); accord Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Indeed, Congress has specified that “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). Thus, when a petitioner bears the burden of proof, his failure to adduce evidence can itself constitute the “substantial evidence” necessary to support the agency’s challenged decision. See generally Zhou Yun Zhang v. INS, 386 F.3d 66, 78-79 (2d Cir.2004) (holding that adverse credibility determination by itself can “constitute substantial evidence to support the conclusion that [the petitioner] failed to carry his burden of proof on his persecution claim,” in absence of other corroborative evidence), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc). Moreover, when a petitioner challenges “the factual findings underlying the immigration court’s determination that [the petitioner] has failed to satisfy his burden of proof’ on the issue of past persecution or a well-founded fear of future persecution, we will not disturb the BIA’s ruling unless we conclude that “no reasonable fact-finder could have failed" }, { "docid": "22710209", "title": "", "text": "8 C.F.R. § 1208.13(b)(1)). See also 8 C.F.R. § 1208.16(b)(l)(iii) (providing, in the context of withholding of removal claims, that “[i]f the applicant’s fear of future threat to life or freedom is unrelated to the past persecution, the applicant bears the burden of establishing that it is more likely than not that he or she would suffer such harm”). The BIA reasoned that unlike female genital mutilation, “family pressures to accede to arranged marriages are not necessarily confined to females.” A-T-, 24 I. & N. Dec. at 304. The BIA then found, without discussing other forms of future persecution that Traore may have feared on account of her particular social group, that Traore’s fear of forced marriage was unrelated to the genital mutilation she suffered in the past, and that Traore had failed to meet her burden of showing that she would be subject to such persecution in the future. Id. Finally, the BIA rejected Traore’s CAT claim, holding that Traore “failed to present evidence that it is more likely than not that she would be tortured if she is returned to Mali.” Id. DISCUSSION 7. Standard of Review 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, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). We review de novo questions of law and the application of law to undisputed fact. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review decisions by the BIA interpreting the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., according to the standard set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.: If the intent of Congress is clear, that is the" }, { "docid": "22675840", "title": "", "text": "his wife and his alleged decision to join the CDP. Finally, the BIA “agree[d] with the Immigration Judge’s alternative finding that, even if the asylum application had been timely filed, it must be denied for lack of evidence of past persecution or a well-founded fear of future persecution.” Id. II. Discussion “Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision ... we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). To establish his eligibility for asylum, an alien who does not claim past persecution must establish that he faces a “reasonable possibility of future persecution” based on a statutorily recognized characteristic. Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir.2006) (internal quotation marks omitted); 8 U.S.C. § 1101(a)(42) (including political opinion among these characteristics). To establish his eligibility for withholding of removal, such an applicant “must show that it is more likely than not that [ ]he would suffer future persecution ... if returned to the country of removal.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 105 (2d Cir.2006) (internal quotation marks omitted). Finally, to establish eligibility for relief under the Convention Against Torture (“CAT”), such an 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.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004) (quoting 8 C.F.R. § 208.16(c)(2)). We review the agency’s factual findings — including any adverse credibility finding — for substantial evidence, treating these as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the agency’s legal conclusions de novo. See, e.g., Jiang v. Bureau of Citizenship and Immigration Servs., 520 F.3d 132, 135 (2d Cir.2008). A. Timeliness of Leng’s application for asylum Leng contends that the IJ did not “fair[ly] assess[ ] ... the evidence in the record” when evaluating his claim that changed and extraordinary circumstances justified his failure to apply for asylum" } ]

[ { "docid": "18492226", "title": "", "text": "of distribution in a case under title 11. All personal injury claims shall be tried in the district court in which the bankruptcy is pending, or where the claim arose. § 157(b)(5). Title 11 does “not affect any right to trial by jury that an individual has under applicable nonbank-ruptcy law with regard to personal injury or wrongful death tort claims.” 28 U.S.C. 1411(a). The scant legislative history is of little help in divining the intended scope of bankruptcy court jurisdiction over personal injury claims in claims allowance proceedings. The court concludes from the statutory language that jury trials are not required for personal injury claims at the claims allowance stage. The inquiry now shifts to whether this conclusion comports with the Seventh Amendment. The claims allowance process is an integral component of the court’s equitable power to restructure debtor-creditor relationships. Langenkamp v. Culp, — U.S. -, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990). A chief purpose of the bankruptcy laws is to secure a prompt and effectual administration and settlement of debtor’s estate within a limited period. Katchen v. Landy, 382 U.S. 323, 328, 86 S.Ct. 467, 472, 15 L.Ed.2d 391 (1966). The power to allow, disallow and reconsider claims is of basic importance in administration of the bankruptcy estate. Unless an action involves “public rights,” parties cannot be deprived of the Seventh Amendment guarantee of a jury trial. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 2796, 106 L.Ed.2d 26 (1989). The test for determining a public right in cases not arising between the government and others is whether the statutory right is closely integrated with a federal regulatory scheme that Congress has power to enact. 109 S.Ct. at 2797. Although stopping short of declaring restructuring of debtor-creditor relations a public right, the Supreme Court noted that “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.” Granfinanciera, 109 S.Ct. at 2798 n. 12, quoting Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71, 102 S.Ct. 2858," } ]

[ { "docid": "2568186", "title": "", "text": "(5) delay and costs to the parties, (6) expediting the bankruptcy process, and (7) judicial economy. In re Kenai Corp. v. National Union Fire Insurance Co., 136 B.R. 59, 61 (S.D.N.Y.1992); In re Orion Pictures Corp. v. Showtime Networks, 4 F.3d 1095, 1101 (2d Cir.1993). B. Core v. Non-Core A determination of whether a proceeding is a core proceeding under Title 11 depends on the nature of the proceeding. In re Best Products Co., 68 F.3d 26, 31 (2d Cir.1995); see also O’Neill v. New England Road, Inc., 2000 WL 435507 (D.Conn.2000) (citing Wechsler v. Squadron, Ellenoff, Plesent, & Sheinfeld LLP, 201 B.R. 635, 639 (S.D.N.Y.1996)). A nonexclusive list of core matters set forth in 28 U.S.C. § 157(b)(2) includes: (1) matters concerning the administration of the debt- or’s estate; (2) allowance or disallowance of claims against the estate; (3) counterclaims by the estate against persons filing claims against the estate; (4) orders to turn over property of the estate; (5) proceedings to determine, avoid, or recover fraudulent conveyances; (6) determinations regarding the dischargeability of particular debts; and (7) determinations of the validity, extent, or priority of liens. Moreover, a matter not included in the statutory list of core proceedings may be deemed core if it invokes a substantive right provided by Title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case. See Brooks Fashion Stores, Inc. v. Michigan Employment Sec. Comm’n, 124 B.R. 436 (Bankr.S.D.N.Y.1991) (citing In re Wood, 825 F.2d 90, 97 (5th Cir.1987)). It is important to determine whether the matter is core or non-core because the bankruptcy court may issue final orders and judgments only with respect to core matters. See 28 U.S.C. § 157(b)(1); In re Ben Cooper, Inc., 896 F.2d 1394, 1402 (2d Cir.1990), vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.1991), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Conversely, with respect to non-core matters, the bankruptcy court may not issue final orders unless the parties" }, { "docid": "16497770", "title": "", "text": "can be timely adjudicated, in a State forum of appropriate jurisdiction.” See In re S.G. Phillips Constructors, Inc., 45 F.3d 702, 708 (2d Cir.1995). By contrast, “[w]hen 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.” Id. Thus, in deciding whether to withdraw a reference from bankruptcy court, the district court must first consider “whether the proceeding is core or non-core ‘since it is upon this issue that questions of efficiency and uniformity will turn.’ ” In re Seatrain Lines, Inc., 198 B.R. 45, 49 (S.D.N.Y.1996) (citing Orion Pictures Corp. v. Showtime Networks, Inc., 4 F.3d 1095, 1101 (2d Cir.1993), cert. dismissed, 511 U.S. 1026, 114 S.Ct. 1418, 128 L.Ed.2d 88 (1994)); see also In re Kenai Corp., 136 B.R. 59, 61 (S.D.N.Y.1992) (motion for withdrawal refused with leave to renew at trial). Congress set out in section 157(b)(2) of title 28 a broad, non-exclusive list of proceedings that are core. While section 157(b)(2)(A) includes as core, “matters concerning the administration of the estate,” not all claims that “concern the administration of the estate” are treated as core. See, e.g., In re Ben Cooper, Inc., 896 F.2d 1394, 1398 (2d Cir.1992), vacated and remanded 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, 924 F.2d 36 (2d Cir. 1991) (“the structure of the [bankruptcy] statute as a whole does not permit such a [broad] construction”). The Supreme Court determined that bankruptcy courts do not have core jurisdiction over “private right” claims merely because those claims involved a debtor. See In re Ben Cooper, Inc., 896 F.2d 1394, 1398 (2d.Cir.1990)(citing Northern Pipeline Construction Co. v. Marathon Pipe Line Co. 458 U.S. 50, 71, 102 S.Ct. 2858, 2871-72, 73 L.Ed.2d 598 (1982)). The Second Circuit has further delineated the contours of core jurisdiction by finding core jurisdiction over private right claims that are founded after the title 11 petition for bankruptcy is filed. Id. at 1399-1400 (“Logically, a post-petition contract that has as its subject matter an estate" }, { "docid": "12970433", "title": "", "text": "over the claim because the debtor did not initiate the action until after it filed a Chapter 11 petition, and because the terms of the 1978 Act allowed the exercise of jurisdiction over such related claims. However, the Supreme Court ruled that Congress had overstepped its bounds and could not constitutionally empower a non-Article III bankruptcy court to adjudicate and issue final orders in a state breach-of-contract action, based upon a pre-petition contract, brought by a debtor against a defendant who was not a party to the bankruptcy ease. See id. at 71, 102 S.Ct. at 2871-72; see also Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 584, 105 S.Ct. 3325, 3334, 87 L.Ed.2d 409 (1985). Congress enacted 28 U.S.C. § 157 largely as a response to Marathon. See In re Orion Pictures Corp., 4 F.3d 1095, 1100 (2d Cir.1993); In re Ben Cooper, Inc., 896 F.2d 1394, 1398 (2d Cir.) (Ben Cooper I), vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, In re Ben Cooper, Inc., 924 F.2d 36, 38 (2d Cir.) (Ben Cooper II), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Section 157 classifies matters as either core or non-core proceedings. See § 157(b)(1), (c)(1). When adjudicating matters deemed core pursuant to section 157(b)(2), a bankruptcy court may issue final orders and judgments. § 157(b)(1). When adjudicating non-core but related matters, the bankruptcy court may not issue final orders and judgments without the consent of the parties; instead, the court must issue proposed findings of fact and conclusions of law to the district court for de novo review. § 157(c)(1). Moreover, the bankruptcy court may not hold a jury trial in a non-core proceeding. See Orion, 4 F.3d at 1101. Although the statute does not define “core,” section 157(b)(2) catalogues a nonexclusive list of matters considered to be core. Included in the list are two catchall provisions, each of which was relied upon by the bankruptcy court below. Specifically, the bankruptcy court found that the proceeding involves “matters concerning the administration of the" }, { "docid": "13779317", "title": "", "text": "we believe that the issue has been sufficiently briefed in this court to allow us to decide it. Cf. Matter of Envirodyne Industries, Inc., 29 F.3d 301, 304 (7th Cir.1994). B. Subject Matter Jurisdiction of the Bankruptcy Court Given the foregoing, we turn to RTC’s claim that the bankruptcy court did not have jurisdiction to enforce the Subordination Agreement. The jurisdiction of the bankruptcy court is set forth in 28 U.S.C. § 157. Section 157(b)(1) provides that “[bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11 ... and may enter appropriate orders and judgments .... ” (emphasis added). A bankruptcy judge may also hear non-core proceedings that are otherwise related to a title 11 case. In such a proceeding, however, the bankruptcy judge may not determine the issue, but may only submit proposed findings of fact and conclusions of law to the district court. 28 U.S.C. § 157(c)(1). Section 157(b)(2) provides a non-exclusive list of proceedings that Congress has deemed core, for example, 157(b)(2)(A) (matters concerning the administration of the estate), 157(b)(2)(F) (proceedings to determine, avoid, or recover preferences), 157(b)(2)(H) (proceedings to determine, avoid, or recover fraudulent conveyances), 157(b)(2)(E) (determinations of the validity, extent, or priority of liens), 157(b)(2)(L) (confirmations of plans), and 157(b)(2)(0) (other proceedings affecting debtor-creditor relationships). Some of these listed items are so broad that they “could be construed to include almost any matter relating to bankruptcy....” In re Ben Cooper, Inc., 896 F.2d 1394, 1398 (2d Cir.), vacated, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.1991). We recognize that such an open-ended, limitless construction would be incorrect. A determination of whether a matter is “core” depends on the nature of the proceeding. In re S.G. Phillips Constructors, Inc., 45 F.3d 702, 707 (2d Cir.1995). Our attempt to construe the language of § 157(b)(2) properly must begin with the Supreme Court’s plurality opinion in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Marathon involved a pre-petition breach of" }, { "docid": "4506490", "title": "", "text": "a related noncore proceeding, upon timely objection, are subject to de novo review by the district court. 28 U.S.C. § 157(c)(1); Ben Cooper, Inc. v. Insurance Co. of the State of Pa. (In re Ben Cooper, Inc.) 896 F.2d 1394, 1397-1398 (2d Cir.), vacated and remanded on other grounds, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, 924 F.2d 36 (2d Cir.), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Numerous courts and commentators have analyzed the origins, applications, and limits of core jurisdiction. For the sake of brevity, we do not repeat their holdings here. Section 157(b)(2) of title 28 classifies certain matters as core proceedings. The list is nonexclusive. Two of this section’s catchall subsections are relevant here. Under § 157(b)(2)(A), “matters concerning the administration of the estate” are core. And under § 157(b)(2)(0), “other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or equity security holder relationship, except personal injury tort or wrongful death claims” are also core. Despite their broad implications, “matters concerning the administration of the estate” and “proceedings affecting the liquidation of the assets of the estate” are construed in light of Marathon’s jurisdictional limitations. Ben Cooper, supra, 896 F.2d at 1398. Our Circuit has defined these jurisdictional and constitutional limits in several decisions. Most recently, in Orion, supra, 4 F.3d at 1102, the Second Circuit held, inter alia, that the bankruptcy court lacked core jurisdiction over a prepetition contract dispute where the defendant had not filed a proof of claim. The Court cautioned that § 157(b)(2)(A) should not be construed so broadly as to “swallow the rule” announced in Marathon. Id., 4 F.3d at 1102. Unlike the facts asserted in the Trust’s Complaint, however, Orion involved an alleged prepetition breach of con tract, rather than a postpetition breach. Orion is therefore distinguishable from the issue before us in at least that respect. An earlier Second Circuit decision, Ben Cooper, swpra, 896 F.2d at 1400, held that state law contract actions are within the bankruptcy court’s core" }, { "docid": "12558184", "title": "", "text": "to strike Weisman’s jury demand. JURISDICTION AND PROCEDURE This court has jurisdiction over this matter under 28 U.S.C. § 1334(b) as a matter arising in a bankruptcy case. This proceeding is before the court pursuant to Local Rule 2.33 of the United States District Court for the Northern District of Illinois automatically referring bankruptcy cases and proceedings to this court for' hearing and determination. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A) as a matter involving the administration of the estate. See In re Ben Cooper, Inc., 896 F.2d 1394, 1400 (2d Cir.), vacated and remanded on other grounds, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990, reinstated, 924 F.2d 36 (2d Cir.1991)) (postpetition contract claims are core); In re Arnold Print Works, 815 F.2d 165, 168 (1st Cir.1987) (same). But see In re Castlerock Properties, 781 F.2d 159, 162 (9th Cir.1986) (contra). The fact that this is a core proceeding in no way affects whether Weisman has a right to a jury trial. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (notwithstanding Congress’ designation of fraudulent conveyance actions as core proceedings, person sued by trustee in bankruptcy to recover an allegedly fraudulent transfer has right to jury trial). DISCUSSION The sole issue in this case is whether Weisman is entitled to a jury trial under the test set forth by the Supreme Court in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Under the analysis enunciated in Granfinanciera, courts are to consider two factors in determining whether a litigant has a right to a jury trial: (1) whether the action brought would have been an action at law or in equity at common law; and (2) whether the remedy sought is legal or equitable in nature. Id. at 42,109 S.Ct. at 2790. The second factor, the remedy sought, carries more weight. Id. Under the Granfinanciera analysis, Weisman does not have a right to jury trial in this proceeding. Historically, breach of fiduciary duty actions have been considered to be equitable. In the" }, { "docid": "4506489", "title": "", "text": "Debtors’ chapter 11 case; (2) the Plan retained bankruptcy court jurisdiction to resolve all disputes involving the Trust; (3) the P & I policies are property of the estate; and (4) the alleged breach of contract occurred postpetition during implementation of the Plan. The jurisdiction of the bankruptcy court over core proceedings is set forth in 28 U.S.C. § 157(b)(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. Id. The phrases “arising in” and “arising under” are terms of art. See 57 H.R.Rep. No. 95-595, 95th Cong., 2nd Sess., 445-446 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6400-6401 (discussing “arising under” jurisdiction); 1 L. King Collier on Bankruptcy ¶ 3.01 at 3-32 (15th ed. 1994) (discussing matters within “arising in” jurisdiction). The bankruptcy courts may enter final orders in core proceedings. In contrast, any determinations by the bankruptcy court in a related noncore proceeding, upon timely objection, are subject to de novo review by the district court. 28 U.S.C. § 157(c)(1); Ben Cooper, Inc. v. Insurance Co. of the State of Pa. (In re Ben Cooper, Inc.) 896 F.2d 1394, 1397-1398 (2d Cir.), vacated and remanded on other grounds, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, 924 F.2d 36 (2d Cir.), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Numerous courts and commentators have analyzed the origins, applications, and limits of core jurisdiction. For the sake of brevity, we do not repeat their holdings here. Section 157(b)(2) of title 28 classifies certain matters as core proceedings. The list is nonexclusive. Two of this section’s catchall subsections are relevant here. Under § 157(b)(2)(A), “matters concerning the administration of the estate” are core. And under § 157(b)(2)(0), “other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or equity security holder relationship, except personal injury tort or wrongful death claims”" }, { "docid": "5654423", "title": "", "text": "adversary proceeding to the district court for a jury trial. . The district court cited 28 U.S.C. § 157(b)(2)(A) (estate administration matters), (E) (\"orders to turn over” estate property). . The district court relied on Granfinanciera, S.A v. Nordberg, 492 U.S. 33, 40-49, 109 S.Ct. 2782, 2789-94, 106 L.Ed.2d 26 (1989). . The district court followed Ben Cooper, Inc. v. The Ins. Co. of the State of Penn. (In re Ben Cooper, Inc.), 896 F.2d 1394, 1402-03 (2d Cir.), cert. granted, — U.S. —, 110 S.Ct. 3269, 111 L.Ed.2d 779, vacated and remanded, — U.S. — —, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36, cert. denied, — U.S —, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). .The district court amended its original order with findings that: (1) this action \"involves a controlling question of law to which there is substantial ground for difference of opinion....”; (2) \"an immediate appeal from the order may materially advance the ultimate determination of the litigation”; and (3) “there is no just reason for delay in the entry of this judgment or its appeal.” . The bankruptcy estate and proceedings below included Baker & Getty Financial Services, Inc., and Baker & Getty Diversified, Inc. However, no facts relating to these two corporations would facilitate this court’s analysis. . Six circuits have held that Section 158 solely governs circuit court jurisdiction when a case originates in bankruptcy court. In re G.S.F. Corp., 938 F.2d 1467, 1472-73 (1st Cir.1991); Germain v. Connecticut Nat'l Bank, 926 F.2d 191, 194-97 (2d Cir.1991), cert. granted,— U.S. —, 112 S.Ct. 294, 116 L.Ed.2d 239 (1991); Capitol Credit Plan of Tenn., Inc. v. Shaffer, 912 F.2d 749, 749-54 (4th Cir.1990); Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.), 911 F.2d 380, 386 (10th Cir.1990); Hester v. NCNB Tex. Nat'l Bank (In re Hester), 899 F.2d 361, 365 (5th Cir.1990); In re First S. Sav. Ass’n, 820 F.2d 700, 708 (5th Cir.1987); Benny v. England (In re Benny), 791 F.2d 712, 718 n. 5 (9th Cir.1986). Two other circuits have implied that they would follow this position." }, { "docid": "13941651", "title": "", "text": "In re Best Products Co., Inc., 68 F.3d 26, 31-33 (2d Cir.1995). According to the Second Circuit, the “relevant inquiry is whether the nature of [the] proceeding, rather than the state or federal basis for the claim, falls within the core of federal bankruptcy power.” In re Manville Forest Products, 896 F.2d at 1389. Under the Second Circuit’s test, even wholly state-law based claims may fall within bankruptcy jurisdiction if there is some other reason to think that, by their nature, they fall within the core of the bankruptcy court’s power. For example, a bankruptcy court has core jurisdiction over tort claims against the debtor’s appointed trustees. In re Harbor Park Assocs. Ltd. Partnership, 112 B.R. 555 (S.D.N.Y.1990); In re G. Weeks Securities, Inc., 89 B.R. 697, 707 (Bkrtcy.W.D.Tenn. 1988). This is proper: although Title 11 does not create the claims themselves, it does create the office and duties of a bankruptcy trustee. In addition, a bankruptcy court may accept jurisdiction over post-petition contract actions, even though contract claims are state law claims. See, e.g., In re Ben Cooper, Inc., 896 F.2d 1394, 1399-1400 (2d Cir.1990), vacated on other grounds by Insurance Co. of State of Pennsylvania v. Ben Cooper, Inc., 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated by In re Ben Cooper, Inc., 924 F.2d 36 (2d Cir.1991), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Chapter 11, rather than liquidating the debtor’s assets, creates a debtor-in-possession that must run its affairs, and at times enter into contracts. Thus, post-petition contracts are integral to the administration of the estate, and core to the bankruptcy power. Id. at 1399. Moreover, an entity contracting with the debtor post-petition is on notice that it has potentially submitted itself to the bankruptcy court’s jurisdiction. To summarize, then, in a ease involving a post-petition tort claim against the trustee, the statutorily-created office and duties of the trustee provide a bankruptcy nexus. In a case involving a post-petition contract claim, the contracting party’s consent to deal with the bankrupt debtor provides a bankruptcy nexus. On the other" }, { "docid": "11184267", "title": "", "text": "BAFJA to conduct jury trials in core proceedings. Although our determination may be “a choice between uncertainties,” see Cheng Fan, 392 U.S. at 215, 88 S.Ct. at 1975-76 (quotation omitted), given the factors militating against finding implied authority — significantly, the textual ambiguity and the sparse legislative history — we choose that which requires the lesser reach. Accordingly, for the reasons expressed above, as well as those delineated by the Sixth, Eighth, and Tenth Circuits, we hold that the Bankruptcy Code, as amended by the 1984 Act, does not authorize bankruptcy judges to conduct jury trials. Where a jury trial is required by the Seventh Amendment, that trial must be held in the district court, sitting in its original jurisdiction in bankruptcy. The district court’s order is Reversed and the case is Remanded for further proceedings in accordance with this opinion. The district court is directed to withdraw the reference and to conduct a jury trial with respect to those issues for which a timely demand for jury trial was made. . See Granfinanciera, S.A v. Nordberg, 492 U.S. 33, 50, 109 S.Ct. 2782, 2794-95, 106 L.Ed.2d 26 (1989); In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.), cert, granted, — U.S.-, 110 S.Ct. 3269, 111 L.Ed.2d 779, vacated and remanded, — U.S.-, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert, denied, — U.S. -, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). . Section 1411 provides: (a) Except as provided in subsection (b) of this section, this chapter and Title 11 do not affect any right to trial by jury that an individual has under applicable nonbankruptcy law with regard to a personal injury or wrongful death tort claim. (b) The district court may order the issues arising under section 303 of Title 11 [dealing with involuntary bankruptcy petitions] to be tried without a jury. 28 U.S.C. § 1411. . And then there is the realist view: It is an open secret that in order to obtain a quick solution to the recent bankruptcy dilemma, Congress inserted the right to jury trial in" }, { "docid": "4681342", "title": "", "text": "same causes of action would constitute non-core proceedings had the transactions taken place prepetition. E.g., Ben Cooper, Inc. v. Insurance Co. of Pa. (In re Ben Cooper, Inc.), 896 F.2d 1394, 1399-400 (2d Cir.1990), cert. granted, 497 U.S. 1023, 110 S.Ct. 3269, 111 L.Ed.2d 779, judg’t vacated, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408, opinion and judg’t reinstated by 924 F.2d 36, 38 (2d Cir.1991), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (hereinafter Ben Cooper) (citing Rafoth v. National Union Fire Ins. Co. of Pitt., Pa. (In re Baker & Getty Fin. Servs., Inc.), 88 B.R. 137, 139-40 (Bankr.N.D.Ohio 1988), appeal on other grounds decided by 954 F.2d 1169 (6th Cir.1992); Franklin Comp. Corp. v. Apple Comp. Corp. (In re Franklin Comp. Corp.), 60 B.R. 795, 800-01 (Bankr.E.D.Pa.1986)); Arnold Print Works, Inc. v. Apkin (In re Arnold Print Works, Inc.), 815 F.2d 165, 168 (1st Cir.1987). These courts’ holdings derive from the theory that causes of action accruing from postpetition transactions with a debtor are matters which concern the administration of the estate. Pursuant to section 157(b)(2)(A) of title 28, “matters concerning the administration of the estate” are core proceedings. Thus, in Cooper, the Second Circuit Court of Appeals wrote: Post-petition contracts with the debtor-in-possession ... are integral to the estate administration from the date they are entered into.... We hold, therefore, that the bankruptcy court has core jurisdiction, pursuant to § 157(b)(2)(A), over contract claims under state law when the contract was entered into post-petition. We read Marathon to apply to claims arising pre-petition, and decline to apply that ruling to claims involving contracts entered into post-petition. Cooper, 896 F.2d at 1399-400 (emphasis in original) (citations omitted). In Arnold, the First Circuit Court of Appeals illustrated the logic of this line of holdings: [A] party who contracts with an apparently healthy company — a company that has not filed a petition in bankruptcy — may find it unpleasantly surprising to have to defend its prepetition contract in a bankruptcy court, without a jury or Article III protections. But it is difficult to see" }, { "docid": "20272987", "title": "", "text": "Art. Ill does not apply.”). . Id. at 72, 102 S.Ct. 2858. . See Eastport Assocs., 935 F.2d at 1077 (“While the district courts have jurisdiction under 28 U.S.C. § 1334 to decide state claims if they are related to a bankruptcy case, the bankruptcy courts may only decide claims if they are part of core proceedings. In non-core proceedings, the bankruptcy courts may only make recommendations to the district courts. 28 U.S.C. § 157(c)(1).”). . 781 F.2d 159, 161 (9th Cir.1986). . Taxel v. Elec. Sports Research (In re Cinematronics, Inc.), 916 F.2d 1444, 1450 (9th Cir.1990) (quoting Castlerock, 781 F.2d at 160). . Accord Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 584, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (explaining the holding of Marathon). . 28 U.S.C. § 157(b)(2)(B); see also id. § 157(b)(2)(0). . 11 U.S.C. § 523(a)(6). . Grogan v. Garner, 498 U.S. 279, 290, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (\"[N]ondischargeability [is] a question of federal law independent of the issue of the validity of the underlying claim.”). . 28U.S.C. § 157(b)(2)(B). . This is consistent with the Supreme Court’s teachings in Langenkamp v. Culp, 498 U.S. 42, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990), and Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). In those cases, the outcome depended on whether the party claiming a jury trial had invoked the claims allowance process of the bankruptcy court by filing a claim against the estate. In Granfinanciera, the Court explained that because the petitioner had \"not filed claims against the estate, [the trustee’s] fraudulent conveyance action [did] not arise 'as part of the process of allowance and disallowance of claims.’ Nor [was] that action integral to the restructuring of debtor-creditor relations. Congress therefore cannot divest petitioners of their Seventh Amendment right to a trial by jury.” 492 U.S. at 58-59, 109 S.Ct. 2782. In Langenkamp the parties claiming a right to jury trial had filed a claim against the estate, \"thereby bringing themselves within the equitable jurisdiction of the Bankruptcy Court,” and thus were not" }, { "docid": "2409741", "title": "", "text": "492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme Court held that under the Seventh Amendment a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer ... notwithstanding Congress’ designation of fraudulent conveyance actions as ‘core proceedings’ in 28 U.S.C. § 157(b)(2)(H). 492 U.S. at 36, 109 S.Ct. at 2787. Since Kazmar has not filed a claim against the estate, he is entitled to a jury trial in this adversary proceeding. IV. AUTHORITY OF BANKRUPTCY COURT TO CONDUCT JURY TRIAL A. EXPLICIT STATUTORY AUTHORITY The only section of title 28 regarding bankruptcy jurisdiction which explicitly addresses jury trials in bankruptcy cases is 28 U.S.C. § 1411, which states: (a) Except as provided in subsection (b) of this section, this chapter and title 11 do not affect any right to trial by jury that an individual has under applicable nonbankruptcy law with regard to a personal injury or wrongful death tort claim. (b) The district court may order the issues arising under section 303 of title 11 to be tried without a jury. The Supreme Court has noted that section 1411 is “notoriously ambiguous.” Granfinanciera, 492 U.S. at 40 n. 3, 109 S.Ct. at 2790 n. 3. Subsection (a) says in essence that nothing in titles 28 or 11 affects any right to a jury trial under non-bankruptcy law in personal injury or wrongful death claims. This might be construed as meaning that there is no right to jury trial in bankruptcy regarding other matters, under the maxim expressio unius est exclusio alterius. However, it has not been construed that way. See, id. See also Ben Cooper, Inc. v. The Ins. Co. of the State of Penn. (In re Ben Cooper, Inc.), 896 F.2d 1394, 1402 (2d Cir.) cert. granted, — U.S.-, 110 S.Ct. 3269, 111 L.Ed.2d 779 vacated and remanded, — U.S. -, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated 924 F.2d 36, cert. denied, — U.S. -, 111 S.Ct. 2041, 114 L.Ed.2d" }, { "docid": "12558183", "title": "", "text": "the McHughs allege that Weisman breached his fiduciary duty as trustee of the bankruptcy estate by negligently liquidating the assets of the estate in two ways: (1) failing to account for certain assets missing from the estate; and (2) selling certain assets for less than their fair market value. The complaint seeks damages from Weisman for those alleged breaches. Weisman filed an answer on March 21, 1992, and, on March 23, 1992, resigned as trustee. Two days later, Philip Martino was appointed as successor trustee. On July 31, 1992, this court granted the Successor Trustee’s motion to intervene in the McHughs’ complaint, ruling that the Successor Trustee was the proper plaintiff to prosecute the McHughs’ claims. On August 27, 1992, the Successor Trustee filed his own adversary complaint against Weis-man and Schwartz under the same adversary number that the McHughs’ complaint had been filed. Weisman filed an answer on November 18, 1992. In his answer, Weisman for the first time requested a jury trial. On February 22, 1993, the Successor Trustee filed the instant motion to strike Weisman’s jury demand. JURISDICTION AND PROCEDURE This court has jurisdiction over this matter under 28 U.S.C. § 1334(b) as a matter arising in a bankruptcy case. This proceeding is before the court pursuant to Local Rule 2.33 of the United States District Court for the Northern District of Illinois automatically referring bankruptcy cases and proceedings to this court for' hearing and determination. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A) as a matter involving the administration of the estate. See In re Ben Cooper, Inc., 896 F.2d 1394, 1400 (2d Cir.), vacated and remanded on other grounds, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990, reinstated, 924 F.2d 36 (2d Cir.1991)) (postpetition contract claims are core); In re Arnold Print Works, 815 F.2d 165, 168 (1st Cir.1987) (same). But see In re Castlerock Properties, 781 F.2d 159, 162 (9th Cir.1986) (contra). The fact that this is a core proceeding in no way affects whether Weisman has a right to a jury trial. See Granfinanciera, S.A. v. Nordberg, 492 U.S." }, { "docid": "1906731", "title": "", "text": "the contractual sub-ordinations which the plan preserves and enforces. A party’s designation of an action as “core,” without more, is not dispositive of the issue of whether a jury trial right is implicated. Germain v. Connecticut National Bank, 988 F.2d 1323, 1329 (2d Cir.1993); In re Edwards, 104 B.R. 890, 898 (Bankr.E.D.Tenn.1989). Were this a non-core matter and were the RTC still entitled to a jury trial, I would be precluded under this Circuit’s jurisprudence from hearing the dispute. See Orion, 4 F.3d at 1101. In contrast, were I to find that this matter is core, I would have the jurisdiction to enter an order irrespective of whether the RTC still could enforce a right to a jury trial. In re Ben Cooper, Inc. (Cooper I), 896 F.2d 1394, 1403-04 (2d Cir.), cert. granted, 497 U.S. 1023, 110 S.Ct. 3269, 111 L.Ed.2d 779, vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated (Cooper II), 924 F.2d 36 (2d Cir.), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991); but see Germain, 988 F.2d at 1332 (Oakes, dissenting). If a particular type of claim is not explicitly mentioned in 28 U.S.C. § 157(b)(2) as a core proceeding, courts consider factors such as whether the rights involved exist independent of title 11, depend on state law for their resolution, existed prior to the filing of a bankruptcy petition, or were significantly affected by the filing of the bankruptcy case. In re Goodman, 991 F.2d 613, 617 (9th Cir.1993); Hoffman v. Ramirez (In re Astroline Communications Company Limited Partnership), 161 B.R. 874, 878 (Bankr.D.Conn.1993). The mere fact that the objecting creditors’ claims raise state contract law issues does not preclude me from finding that the proceeding is core. 28 U.S.C. § 157(b)(3) (“Determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law.”) In this context, it is hard to imagine an issue that is more at the heart of the bankruptcy process than is this. Enforcement of a contractual" }, { "docid": "2568187", "title": "", "text": "particular debts; and (7) determinations of the validity, extent, or priority of liens. Moreover, a matter not included in the statutory list of core proceedings may be deemed core if it invokes a substantive right provided by Title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case. See Brooks Fashion Stores, Inc. v. Michigan Employment Sec. Comm’n, 124 B.R. 436 (Bankr.S.D.N.Y.1991) (citing In re Wood, 825 F.2d 90, 97 (5th Cir.1987)). It is important to determine whether the matter is core or non-core because the bankruptcy court may issue final orders and judgments only with respect to core matters. See 28 U.S.C. § 157(b)(1); In re Ben Cooper, Inc., 896 F.2d 1394, 1402 (2d Cir.1990), vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.1991), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Conversely, with respect to non-core matters, the bankruptcy court may not issue final orders unless the parties consent. See 28 U.S.C. § 157(c). If one of the parties does not consent, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court. Then the district judge enters a final order of judgment after considering the bankruptcy judge’s proposed findings and conclusions and after “reviewing de novo those matters to which any party has timely and specifically objected.” Pied Piper Casuals Inc. v. Insurance Company of the State of Pennsylvania, 72 B.R. 156, 158 (S.D.N.Y. 1987). In light of the de novo review and the potential for both the bankruptcy court and the district court to hear the same matter, the Second Circuit instructs district courts to first “evaluate whether the claim is core or non-core, since it is upon that issue that questions of efficiency and uniformity will turn. For example, the fact that a bankruptcy court’s determination on non-core matters is subject to de novo review by the district court could lead the latter to conclude that in a given case unnecessary costs could be avoided" }, { "docid": "10250404", "title": "", "text": "debtor under the surplus notes in order for the debtor to establish that there is a debtor-creditor relationship between the parties within the meaning of 28 U.S.C. § 157(b)(2)(0). The Defendants’ Counterclaims Counterclaims by the estate against persons filing claims against the estate are regarded as core proceedings pursuant to 28 U.S.C. § 157(b)(2)(C). In the instant case, however, the counterclaims were not filed by the debtor, but were filed by the defendants against the debtor’s estate. The defendants have not filed any proofs of claims against the estate. Therefore, the defendants’ counterclaims do not create a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(C). However, the debtor contends that by filing counterclaims in the bankruptcy court, the defendants have waived a trial by jury and have consented to the determination of the debtor’s adversary proceeding by the bankruptcy court, with the result that a withdrawal of the reference should be denied. The United States Supreme Court has clearly ruled that when a party files a claim against a debtor, a trial by jury is unavailable because a determination of the claim is part and parcel of the process of an allowance and disallowance of claims which is integral to the restructuring of the debtor-creditor relations, and, therefore, a public right. Granfinanciera v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Accord, Langenkamp v. Culp, — U.S. —, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990). The Supreme Court has not yet ruled on whether a Bankruptcy Court may conduct a jury trial. The Circuit Courts of Appeal are divided on this issue. Compare In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.1990), cert. granted, — U.S. —, 110 S.Ct. 3269, 111 L.Ed.2d 779 (1990), vacated and remanded, — U.S. —, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990) (the Second Circuit sustained a jury trial in Bankruptcy Court in a core proceeding) with In re Cinematronics, Inc., 916 F.2d 1444, 1451 (9th Cir.1990) (“[b]ankruptcy courts cannot conduct jury trials in non-core matters, where the parties have not consented.”); Beard v. Braunstein, 914 F.2d 434, 445" }, { "docid": "1204535", "title": "", "text": "delay must be factored into the “prompt adjudication” calculus, and tips the scales slightly in favor of remand. Fedders further argues that remand is appropriate since Fedders has requested a jury trial, regardless whether this matter is determined to be core or noncore. This court has held on previous occasions that a jury demand is not a “magic bullet” with which one can, with certainty, kill any attempts to bring litigation into the bankruptcy court, and reiterates that position here. The provision governing jury trials in bankruptcy is codified at 28 U.S.C. § 1411(a). That section provides that the provisions of the Bankruptcy Code do not affect a litigant’s Seventh Amendment right to a jury trial. Section 1411(a) is silent regarding the appropriate forum for these jury trials, however. Are they to be heard in the bankruptcy court or the district court? The circuits are in disarray. Compare In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.), vacated, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. denied, — U.S.-, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991) with In re Grabill Corp., 976 F.2d 1126 (7th Cir.1992) and In re United Missouri Bank, N.A., 901 F.2d 1449 (8th Cir.1990) and In re Kaiser Steel Corp., 911 F.2d 380 (10th Cir.1990). The Fifth Circuit has not definitively ruled on this issue. See Matter of Jensen, 946 F.2d 369 (5th Cir.1991). The Supreme Court has in recent years adopted a strict plain meaning approach to construing the Bankruptcy Code and related statutes. See, e.g., Taylor v. Freeland & Kronz, — U.S.-, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992); Conn. Nat. Bank v. Germain, — U.S. -, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). While section 1411(a) does not specify the proper forum for a bankruptcy trial, section 157 does state that “[bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11.” See 28 U.S.C. § 157(b)(1). A" }, { "docid": "18801810", "title": "", "text": "a defense to the attorneys’ claim for fees. IV. For the foregoing reasons, the judgment of the district court will be reversed and this matter will be remanded to the district court for referral of this malpractice dispute to the bankruptcy court. . The statute provides that \"[b]ankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11 ... and may enter appropriate orders and judgments,” subject to ordinary appellate review by the district courts. 28 U.S.C. § 157(b)(1) (1988). Core proceedings include \"matters concerning the administration of the estate\" and \"other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor ... relationship.” Id. § 157(b)(2)(A), (0) (1988). Post-petition transactions are more likely to be core proceedings. In re Ben Cooper, Inc., 896 F.2d 1394, 1399 (2d Cir.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991); In re Arnold Print Works, Inc., 815 F.2d 165, 168 (1st Cir.1987); cf. Beard v. Braunstein, 914 F.2d 434, 445 (3d Cir.1990) (not relying on Ben Cooper and Arnold Print Works because the case at bar involved pre-petition contracts only). The district court ruled that the debtors’ post-petition claim attacking the competency of bankruptcy counsel was a matter concerning the administration of the estate under 28 U.S.C. § 157(b)(2)(A). Billing v. Ravin, Greenberg & Zackin, P.A., 150 B.R. 563, 566 (D.N.J.1993). Therefore, the court held, and the parties do not disagree, that the debtors’ malpractice claim constituted a core proceeding. Id. at 567. . Although the Supreme Court has considered the thesis that the restructuring of debtor-creditor relations may be a public right. Marathon, 458 U.S. at 71, 102 S.Ct. at 2871, it has specifically refused to defend such a view. Granfinanciera, 492 U.S. at 55-56 & n. 11, 109 S.Ct. at 2798 & n. 11. . In Granfinanciera, the debtors filed petitions under Chapter 11 of the bankruptcy code and a trustee in bankruptcy was subsequently appointed to represent the estate. 492 U.S. at 36, 109" }, { "docid": "13941652", "title": "", "text": "In re Ben Cooper, Inc., 896 F.2d 1394, 1399-1400 (2d Cir.1990), vacated on other grounds by Insurance Co. of State of Pennsylvania v. Ben Cooper, Inc., 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated by In re Ben Cooper, Inc., 924 F.2d 36 (2d Cir.1991), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991). Chapter 11, rather than liquidating the debtor’s assets, creates a debtor-in-possession that must run its affairs, and at times enter into contracts. Thus, post-petition contracts are integral to the administration of the estate, and core to the bankruptcy power. Id. at 1399. Moreover, an entity contracting with the debtor post-petition is on notice that it has potentially submitted itself to the bankruptcy court’s jurisdiction. To summarize, then, in a ease involving a post-petition tort claim against the trustee, the statutorily-created office and duties of the trustee provide a bankruptcy nexus. In a case involving a post-petition contract claim, the contracting party’s consent to deal with the bankrupt debtor provides a bankruptcy nexus. On the other hand, under Marathon, in a case involving a pre-petition contract claim, no bankruptcy nexus exists, due to the lack of notice to the contracting party of the impending bankruptcy. See Ben Cooper, 896 F.2d at 1400 (citing relevant cases). Similarly, no bankruptcy nexus exists in a case involving a tort claim arising pre-petition. See, e.g., In re Yobe, 75 B.R. 873 (Bkrtcy.W.D.Pa.1987) (claim of tortious interference alleged to have caused bankruptcy held to be non-core); In re Bokum Resources Corp., 49 B.R. 854 (Bkrtcy.D.N.M.1985) (contract-related tortious interference claim held to be non-core). In my view, TG & Ys post-petition tort claim, against a non-creditor third party, is more like a non-core, pre-petition contract or tort claim than it is like a core, post-petition contract claim. Like the pre-petition contract partner or tortfeasor, the post-petition tortfeasor cannot generally be held to have notice of the debtor’s bankruptcy, and of the risk that it will be haled into bankruptcy court. Granted, one court, in a Chapter 7 case, has found that the mere fact that a tort" } ]

[ { "docid": "1579177", "title": "", "text": "claims against Deutsche Bank for fraud and intentional misrepresentation rest upon the allegation that Deutsche Bank affirmatively expressed that the letters of credit would serve as security for Level Propane’s obligations under the proposed Mick settlement in the event of a bankruptcy. Defendants argue that such misrepresentations, even if made, were not false statements of fact, but rather were statements of Deutsche Bank’s opinion about the law and about the future application of the law. As such, Defendants contend that their statements regarding opin ions of law cannot form the basis for EJF’s fraud or misrepresentation claims. The elements of a cause of action for intentional misrepresentation are as follows: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to the veracity of the representation that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101, 1102 (1986). Under Ohio law, however, an alleged misrepresentation of law cannot form the basis for a fraud or intentional misrepresentation claim. Lynch v. Dial Fin. Co., 101 Ohio App.3d, 742, 750, 656 N.E.2d 714, 720 (1995); Aetna Ins. Co. v. Reed, 33 Ohio St. 283, 292-294 (1877). The principle that fraud must rest on a misrepresentation of fact, and cannot be supported by a misstatement of opinion, is based on the theory that “everyone is equally capable of determining the law, is presumed to know the law and is bound to take notice of the law and, therefore, in legal contemplation, cannot be deceived by representations concerning the law or permitted to say he or she has been misled.” Williston on Contracts, Misstatements of Law, § 69:10 (4th Ed.)(2004). Deutsche Bank argues that its statements to EJF, assuming they were made, should be characterized as" } ]

[ { "docid": "19356547", "title": "", "text": "of Foreclosure) ¶ 3(d). In light of the Affidavit of Foreclosure, Plaintiff argues only that “no sale at all can be conducted while a HAMP loan modification is pending.” Mem. in Opp’n to Fannie Mae Motion at 16. Plaintiff, however, does not have standing to enforce the HAMP guidelines. “[T]here is no express or implied private right of action to sue lenders or loan servicers for violation of HAMP.” Dodd v. Fed. Home Loan Mortg. Corp., 2011 WL 6370032, at *12 (E.D.Cal. Dec. 19, 2011) (collecting cases). HAMP is a loan modification program designed to reduce delinquent and at-risk borrowers’ monthly mortgage payments. HAMP was authorized by Congress as part of' the Emergency Economic Stabilization Act of 2008, which has the stated purpose of giving the Secretary of the Treasury the “authority and facilities” necessary “to restore liquidity and stability to the financial system of the United States.” 12 U.S.C. § 5201(1). Under the terms of the HAMP agreement and Treasury regulations, [a lender] is required to evaluate borrowers for loan modifications within thirty days, grant loan modifications to qualified borrowers, forebear from foreclosure during the time that an application for a loan modification is pending, and advise loan modification applicants of the prohibition on foreclosure sales (see Dkt. No. 11 (Treasury Department’s Supplemental Directive 10-02)). Newell v. Wells Fargo Bank, N.A., 2012 WL 27783, at *5 (N.D.Cal. Jan. 5, 2012). Any alleged violation of the HAMP guidelines, however, does not create a claim for violation of HRS § 667-5. For example, in Soriano v. Wells Fargo Bank, N.A., 2013 WL 310377, at *9 (D.Haw. Jan. 25, 2013), the court allowed evidence of violations of the HAMP guidelines to proceed on a common law negligence theory, but not as a stand-alone claim. Soriano explained: Among other things, the HAMP guidelines provide that, “[t]o ensure that a borrower currently at risk of foreclosure has the opportunity to apply for HAMP, servicers should not proceed with a foreclosure sale until the borrower has been evaluated for the program and, if eligible, an offer to participate in HAMP has been made.” U.S. Dep’t" }, { "docid": "19356548", "title": "", "text": "grant loan modifications to qualified borrowers, forebear from foreclosure during the time that an application for a loan modification is pending, and advise loan modification applicants of the prohibition on foreclosure sales (see Dkt. No. 11 (Treasury Department’s Supplemental Directive 10-02)). Newell v. Wells Fargo Bank, N.A., 2012 WL 27783, at *5 (N.D.Cal. Jan. 5, 2012). Any alleged violation of the HAMP guidelines, however, does not create a claim for violation of HRS § 667-5. For example, in Soriano v. Wells Fargo Bank, N.A., 2013 WL 310377, at *9 (D.Haw. Jan. 25, 2013), the court allowed evidence of violations of the HAMP guidelines to proceed on a common law negligence theory, but not as a stand-alone claim. Soriano explained: Among other things, the HAMP guidelines provide that, “[t]o ensure that a borrower currently at risk of foreclosure has the opportunity to apply for HAMP, servicers should not proceed with a foreclosure sale until the borrower has been evaluated for the program and, if eligible, an offer to participate in HAMP has been made.” U.S. Dep’t of the Treasury, Home Affordable Modification Program Guidelines, § VII, 610.04.04. This court permits Count IV to proceed to the extent an alleged breach of the HAMP Guidelines is offered as evidence of common law negligence, not to the extent a claim directly under the HAMP Guidelines is asserted. Soriano v. Wells Fargo Bank, N.A., 2013 WL 310377, at *9 (D.Haw. Jan. 25, 2013). Here, in contrast to Soriano, no such separate common law claim has been asserted. Although Plaintiff alleges that no sale can occur while a HAMP loan modification is pending, nothing in HRS § 667-5 proscribes the activities undertaken by Defendants here. Nor does Plaintiff present any factual allegations in support of her claims that the Assignment of Mortgage is invalid, or that she did not receive required notice of the foreclosure. Accordingly, Plaintiff fails to state a claim for violations of HRS Chapter 667. Because these claims are based on the allegedly defective Assignment of Mortgage and violations of the HAMP guidelines, the Court concludes that amendment of these claims would" }, { "docid": "10598483", "title": "", "text": "their memorandum in opposition to Chase’s motion to dismiss, the Horvaths explain: Cognizant the Plaintiff might be confused or unclear as to what the factual allegations making up Defendants’ fraud claim consisted of, Defendants went so far as to state the following in the counterclaim: In other words, to be specific in an attempt to satisfy the heightened pleading standard of fraud, Counterclaim Defendant led Counterclaim Plaintiffs to believe they would be approved for a permanent loan modification. Counterclaim Plaintiffs reasonably relied upon this promise and in so doing, forewent other avenues to save their home. Counterclaim Defendant knew it would never approve Counterclaim Plaintiffs for a loan modification. Counterclaim - Defendant did not want Counterclaim Plaintiffs to seek other avenues to save their home because of Counterclaim Defendant’s omnipresent ulterior motive to foreclose on the Property. (Doc. No. 17 at 15-16) (quoting Doc. No. 4, ¶ 35). As discussed supra, HAMP does not provide for the relief the Horvaths seek. Even if a private right of action were available, the Horvaths have failed to meet the pleading requirement that they at least allege the time, place, and content of the alleged misrepresentation on which they relied. Consequently, the Court GRANTS Chase’s motion to dismiss as it relates to the Horvath’s fraud claim. 4. Breach of the Covenant of Good Faith and Fair Dealing Chase argues that it is entitled to dismissal of the Horvath’s claim for a breach of the covenant of good faith and fair dealing because that claim cannot stand without a partner claim for breach of contract. This Court agrees. It is well established under Ohio law that, “an allegation of a breach of the implied covenant of good faith cannot stand alone as a separate cause of action from a breach of contract claim.” Krukrubo v. Fifth Third Bank, No. 07AP-270, 2007 WL 4532689, at *5, 2007 Ohio App. LEXIS 6140, at *12 (Ohio Ct.App. Dec. 27, 2007) (The duty of good faith and fair dealing being integral to any contract, the breach of that duty, when alleged, is thus integral to the plaintiffs cause" }, { "docid": "11254453", "title": "", "text": "claim is appropriately dismissed. B. Implied Covenant of Good Faith and Fair Dealing (Count II) Defendants allege that Plaintiff breached an implied covenant of good faith and fair dealing in the TPP Agreement. (Doc. 9-2 at ¶ 85). An implied covenant, however, “does not stand alone” as “a separate claim.” Pappas v. Ippolito, 177 Ohio App.3d 625, 642, 895 N.E.2d 610 (2008). Furthermore, a duty of good faith and fair dealing “cannot exist until the underlying contract is formed.” Walker v. Dominion Homes, Inc., 164 Ohio App.3d 385, 397, 842 N.E.2d 570 (2005). As the unsigned TPP Agreement is not an enforceable contract, the breach of implied covenant of good faith and fair dealing claim is appropriately dismissed. C. Promissory Estoppel (Count III) The elements of a claim of promissory estoppel are: “(1) a clear and unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable and foreseeable; and (4) damages caused by that reliance.” JP Morgan Chase Bank, N.A. v. Horvath, 862 F.Supp.2d 744, 749 (S.D.Ohio 2012) (citing Current Source, Inc. v. Elyria City Sch. Dist., 157 Ohio App.3d 765, 773, 813 N.E.2d 730 (Ohio Ct.App.2004) (citing Healey v. Republic Powdered Metals, Inc., 85 Ohio App.3d 281, 284, 619 N.E.2d 1035 (Ohio Ct.App.1992))). Defendants allege that Plaintiff breached a promise in the TPP Agreement to permanently modify their loan if they made three reduced payments and submitted some documents. (Doc. 9-2 at ¶91). However, this claim fails for several reasons. First, the TPP Agreement does not make a “clear and unambiguous promise” that Plaintiff would permanently modify Defendants’ loan. Kena Props., LLC v. Merchants Bank & Trust, 218 Fed.Appx. 402, 406 (6th Cir.2007); see also Nachar v. PNC Bank, 901 F.Supp.2d 1012, 1020-21 (N.D.Ohio 2012). The TPP Agreement explicitly contemplated that Defendants could temporarily make reduced payments while they applied for a permanent loan modification by submitting documents that Plaintiff needed to determine if Defendants qualified under HAMP, and, moreover, that Plaintiff had discretion to decide whether to modify the loan. Defendants have not alleged that Plaintiff found them qualified under HAMP, nor that they received a" }, { "docid": "22239011", "title": "", "text": "HAMILTON, Circuit Judge. We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (HAMP). The U.S. Department of the Treasury implemented HAMP to help homeowners avoid foreclosure amidst the sharp decline in the nation’s housing market in 2008. In 2009, Wells Fargo issued Wigod a four-month “trial” loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines. Wigod alleges that she did qualify and that Wells Fargo refused to grant her a permanent modification. She brought this putative class action alleging violations of Illinois law under common-law contract and tort theories and under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). The district court dismissed the complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Wigod v. Wells Fargo Bank, N.A., No. 10 CV 2348, 2011 WL 250501 (N.D.Ill. Jan. 25, 2011). The court reasoned that Wigod’s claims were premised on Wells Fargo’s obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements. This appeal followed, and it presents two sets of issues. The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts. Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo committed fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod’s claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois’s economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod’s claim for fraudulent concealment is" }, { "docid": "20103844", "title": "", "text": "to dismiss the first cause of action to the extent that it is based on the alleged breach of the consent order or the SPA. Caires erroneously argues that this Court cannot consider whether Caires is eligible for HAMP on a motion to dismiss because that would involve referring to material outside of the pleadings. See [Dkt. # 86, Pl. Mem. at p. 34], “However, where a plaintiff does not attach to the complaint or incorporate by reference a document on which it relies and which is integral to the complaint, a defendant may introduce that document as part of a motion attacking the pleadings.” Colon v. Town of West Hartford, No. 3:00cv168(AHN), 2001 WL 45464, at *1 n. 1 (D.Conn. Jan. 5, 2001) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)). Integral to Caires’s complaint is Caires’s assertion that he is entitled to enforce the provisions of the SPA under HAMP and therefore documentation regarding HAMP is integral to the complaint and may be reviewed by this Court in its analysis on the pending motion to dismiss. Further, it is “well established that a district court may rely on matters of public record in deciding a motion to dismiss, including case law and statutes.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998). Here, government publications regarding HAMP are undoubtedly a proper subject of judicial notice and can be reviewed on a motion to dismiss. See e.g., Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir.2012) (taking judicial notice of background information on the HAMP program on a motion to dismiss); Mcinnis v. BAC Home Loan Servicing, LP, No. 2:11ev468, 2012 WL 383590, at *7 (E.D.Va. Jan. 13, 2012) (taking “judicial notice of the fact that HAMP Guidelines ‘guarantee only that an eligible borrower will be evaluated for a loan modification,’ and do not require mortgage servicers to modify loans.”) (citation omitted); Gaudin v. Saxon Mortg. Servs., Inc., No. C11-1663RS, 2011 WL 5825144, at *3 n. 1 (N.D.Cal. Nov. 17, 2011) (holding that request for “judicial" }, { "docid": "5622080", "title": "", "text": "ORDER GRANTING DEFENDANT’S MOTION TO DISMISS LAUREL BEELER, United States Magistrate Judge. INTRODUCTION Plaintiffs John R. Graybill and Patricia Goff-Graybill (the “Graybills”) filed this lawsuit against Wells Fargo Bank raising eight claims stemming from Wells Fargo’s actions regarding their mortgage loan, their 2006 refinancing of it, their 2009 attempts to modify the loan under the Home Affordable Modification Program (“HAMP”), and the foreclosure of their house: (1) breach of contract; (2) promissory estoppel; (3) fraud; (4) violation of California’s unfair competition law, Cal. Bus. & Prof.Code § 17200; (5) negligence; (6) declaratory relief; (7) fraud and breach of fiduciary duty in the sale of the loan; and (8) fraud in the alteration of Plaintiffs’ loan application. Third Amended Complaint (“TAC”), ECF No. 33. Wells Fargo moved to dismiss the TAC. See Motion, ECF No. 34. The court finds the matter suitable for determination without oral argument under Civil Local Rule 7-l(b) and GRANTS the motion with prejudice. STATEMENT I. FACTUAL BACKGROUND From November 1987 to July 23, 2012, the Graybills, who are married, lived at their home at 608 Eastwood Way, Mill Valley, California. Third Amended-Complaint (“TAC”), ECF No. 33, ¶ 5. This case involves their loan refinancing in 2006 with World Bank and their attempts to secure a HAMP loan modification in 2011 with World Bank’s successor, Wachovia/Wells Fargo. See id. Through “all times pertinent” to the TAC, Wells Fargo has claimed that it had the right to service and collect on the loan. Id. ¶ 25. This section first reviews the history of World Bank/Wachovia/Wells Fargo and then summarizes the complaint’s allegations about the refinancings and the attempted loan modification under HAMP. A. The Defendant Wells Fargo Bank World Bank changed its name to Wachovia Mortgage on December 21, 2007. Id. ¶ 16. Wells Fargo agreed to buy Wachovia in October 2008 and then completed the purchase in January 2009. Id. ¶ 17. On November 1, 2009, Wachovia converted to a national bank called Wells Fargo Bank Southwest, NA, which then merged with and into Wells Fargo Bank, NA. Id. With the merger, ultimately the servicing of Plaintiffs’" }, { "docid": "11254454", "title": "", "text": "Elyria City Sch. Dist., 157 Ohio App.3d 765, 773, 813 N.E.2d 730 (Ohio Ct.App.2004) (citing Healey v. Republic Powdered Metals, Inc., 85 Ohio App.3d 281, 284, 619 N.E.2d 1035 (Ohio Ct.App.1992))). Defendants allege that Plaintiff breached a promise in the TPP Agreement to permanently modify their loan if they made three reduced payments and submitted some documents. (Doc. 9-2 at ¶91). However, this claim fails for several reasons. First, the TPP Agreement does not make a “clear and unambiguous promise” that Plaintiff would permanently modify Defendants’ loan. Kena Props., LLC v. Merchants Bank & Trust, 218 Fed.Appx. 402, 406 (6th Cir.2007); see also Nachar v. PNC Bank, 901 F.Supp.2d 1012, 1020-21 (N.D.Ohio 2012). The TPP Agreement explicitly contemplated that Defendants could temporarily make reduced payments while they applied for a permanent loan modification by submitting documents that Plaintiff needed to determine if Defendants qualified under HAMP, and, moreover, that Plaintiff had discretion to decide whether to modify the loan. Defendants have not alleged that Plaintiff found them qualified under HAMP, nor that they received a TPP Agreement signed by Plaintiff, nor a permanent Modification Agreement. Plaintiffs statement in the TPP Agreement that it would “provide [Defendants] with a Loan Modification Agreement, as set forth in Section 3 [below], that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage” if Defendants were “in compliance with [the] Loan Trial Period and [Defendants’] representations in Section 1 continue to be true in all material respects” must be read in the context of the rest of the TPP Agreement, which repeatedly, clearly, and unequivocally states that Defendants might or might not qualify for HAMP modification and that the TPP Agreement would only take effect once both parties had signed it. Thus, Defendants’ “compliance with the terms of the TPP” explicitly did not guarantee a permanent modification. Geske v. Wells Fargo Bank, 2012 WL 1231835, at *6 (N.D.Tex. Apr. 12, 2012). That.is, “even accepting as true [Defendants’] allegations that they complied with the terms of the TPP by providing requested documentation and making certain payments,” the" }, { "docid": "10598470", "title": "", "text": "Horvaths allege the following causes of action in their Counterclaim: (1) promissory estoppel, (2) violations of the Ohio Consumer Sales Practices Act, Ohio Rev.Code § 1345.01, et seq. (“OCSPA”), (3) fraud, (4) breach of the covenant of good faith and fair dealing, (5) violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”), (6) negligent supervision, (7) violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq. (“RESPA”), and (8) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). Chase argues that each of these claims fail because (A) HAMP provides no private cause of action for denials of a requested loan modification, and (B) they fail to state plausible claims for relief. A. Home Affordable Modification Program Many courts, including at least two sister district courts in Michigan, have determined whether or not HAMP provides a private right of action for failure to approve a loan modification. See Hart v. Countrywide Home Loans, Inc., 735 F.Supp.2d 741 (E.D.Mich.2010); Hubert v. PNC Bank, No. 10-13831, 2011 WL 4027417, 2011 U.S. Dist. LEXIS 102603 (E.D.Mich. Sept. 12, 2011). The Michigan courts, and virtually every court reviewing the issue, have held that HAMP does not provide for a private cause of action. See Hart, supra (noting that there is no express or implied right to sue fund recipients under HAMP because HAMP does not create a private right of action); Hubert, supra (“Virtually every court has held that HAMP does not provide for a private cause of action.”); Singh v. Wells Fargo Bank, No. 1:10-cv-1659, 2011 WL 66167, at *7, 2011 U.S. Dist. LEXIS 3563, at *23 (E.D.Cal. Jan. 7, 2011) (“[I]t is well established that there is no private cause of action under HAMP.”); Cade v. BAC Home Loans Servicing, LP, No. H-10-4224, 2011 WL 2470733, at *2-3 (S.D.Tex. June 20, 2011) (“HAMP litigation is new and yet emerging; the majority of courts faced with HAMP questions, however, have determined that no private right of action to enforce lender compliance exists under HAMP.”); Inman v. Suntrust Mortg.," }, { "docid": "11254455", "title": "", "text": "TPP Agreement signed by Plaintiff, nor a permanent Modification Agreement. Plaintiffs statement in the TPP Agreement that it would “provide [Defendants] with a Loan Modification Agreement, as set forth in Section 3 [below], that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage” if Defendants were “in compliance with [the] Loan Trial Period and [Defendants’] representations in Section 1 continue to be true in all material respects” must be read in the context of the rest of the TPP Agreement, which repeatedly, clearly, and unequivocally states that Defendants might or might not qualify for HAMP modification and that the TPP Agreement would only take effect once both parties had signed it. Thus, Defendants’ “compliance with the terms of the TPP” explicitly did not guarantee a permanent modification. Geske v. Wells Fargo Bank, 2012 WL 1231835, at *6 (N.D.Tex. Apr. 12, 2012). That.is, “even accepting as true [Defendants’] allegations that they complied with the terms of the TPP by providing requested documentation and making certain payments,” the TPP “gives [the servicer] broad discretion to determine whether the [Defendants] qualified for a permanent loan modification.” Id. Similarly, the counterclaims do not adequately allege “reasonable ... reliance” on any promise. Militiev v. McGee, 2010 WL 5550258, at *6 (Ohio Ct.App. Dec. 30, 2010). “[C]ourts have concluded that a party’s reliance on a TPP is not reasonable” because “much of the relevant TPP language is conditional.” Stolba, 2011 WL 3444078, at *5. Consequently, any reliance on the part of Defendants on any promise to modify Defendants’ loan obligations on the part of Plaintiff would have been unreasonable given the plain language of the TPP Agreement. As a result, the promissory estoppel claim is appropriately dismissed. D. Violation of Ohio’s Deceptive Trade Practices Act (Count IV) Finally, Defendants assert that Plaintiff violated the DPTA by offering to permanently modify putative class members’ loans if they made three reduced payments and submitted the necessary documentation. (Doc. 9-2 at ¶ 99). -However, “a consumer does not have standing to due under the DPTA.” Blankenship v. CFMOTO Powersports, Inc.," }, { "docid": "4431970", "title": "", "text": "27, 2011, Bohnhoff began this action in state court, claiming breach of contract, breach of mortgagee duty, fraud, negligent misrepresentation, promissory estoppel, unjust enrichment and breach of the Minnesota Residential Mortgage Originator and Servicer Licensing Act (Minnesota Residential Mortgage Act). Bohnhoff also seeks a declaration that she has fully performed her obligations and is entitled to modification of the Note and injunctive relief tolling foreclosure. Wells Fargo timely removed, and moves to dismiss. DISCUSSION I. Loan Modification Wells Fargo first argues that Bohnhoffs claims are per se barred because HAMP lacks a private right of action. The United States Department of the Treasury created HAMP in response to a directive in the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. §§ 5201-5261. HAMP gives financial incentives to encourage mortgage servicers to modify mortgage loans. See Williams v. Geithner, No. 09-1959, 2009 WL 3757380, at *2 (D.Minn. Nov. 9, 2009). As this court has previously noted, there is no private right of action under HAMP. See McInroy v. BAC Home Loan Servicing, LP, No. 10-4342, 2011 WL 1770947, at *3 (D.Minn. May 9, 2011). HAMP uses a two-step process for modifications. See U.S. Dep’t of Treasury, Supplemental Directive 09-01, Introduction to the Home Affordable Modification Program 14 (2009). Step one involves a trial plan in which a servicer and borrower agree to trial payments. Participating servicers must evaluate several criteria, including a NPV calculation, when considering whether to offer a modification. Williams, 2009 WL 3757380, at *2-3 & *3 n. 3. If a borrower meets all HAMP criteria and makes trial payments, step two involves modification of the underlying loan. See Supplemental Directive 09-01, at 14. The Trial Period Plan is “three months in duration (or longer if necessary to comply with applicable contractual obligations).” Id. at *17. Defendant cites Cox v. Mortgage Electronic Registration Systems, 794 F.Supp.2d 1060 (D.Minn.2011), in support of its argument that Bohnhoff s claims are barred by a lack of private remedy under HAMP. Bohnhoff responds that Cox does not stand for the proposition that HAMP creates an absolute shield for lenders under state law." }, { "docid": "4887080", "title": "", "text": "'measuring' and 'determining' [damages] is really a part of the process of creating them”). . In In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig., No. 10-md-02193-RWZ, 2011 WL 2637222 (D.Mass. July 6, 2011) (Zobel, J.), several individual mortgagors brought putative class actions against Bank of America, N.A. (\"BOA”), and its subsidiary, BAC Home Loans Servicing, LP (\"BAC”), alleging that the defendants improperly administered the federal Home Affordable Loan Modification Program (“HAMP”). Id. at *1. The plaintiffs all obtained home mortgage loans from BAC, on which they later defaulted. Id. To avoid foreclosure, they sought to participate in HAMP. Id. Pursuant to HAMP, BAC entered into a standard agreement with some of the plaintiffs for a temporary trial modification of their loan. Id. at *1-2. Under this Temporary Period Plan (\"TPP”), each homeowner made reduced mortgage payments based on his or her financial eligibility. Id. at *1. The TPP promised that, by complying with its terms for three months, the homeowner would receive a permanent HAMP modification on those same terms. Id. Despite the plaintiffs' compliance with all of the TPP’s terms, they never received a permanent loan modification or a written notice that their request for a permanent modification had been denied. Id. at *2. As to these plaintiffs, the court upheld their claims for breach of contract or, in the alternative, promissory estoppel as sufficiently alleged. Id. at *3-4. With respect to the promissory estoppel claim in particular, the court rejected the defendant's argument that \"no plaintiff could reasonably have relied on a promise in the TPP to modify his or her loan because the TPP contained numerous conditions precedent which plaintiffs failed to perform.” Id. at *4. Not only had the plaintiffs \"meticulously” alleged their compliance with all of the conditions precedent, but also the existence of conditions had no effect on the reasonableness of the plaintiffs’ reliance. Id. Similarly, in Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 351 (D.Mass.2011) (Saylor, J.), the plaintiffs signed a TPP with Wells Fargo, but alleged that the bank never offered them a permanent loan modification." }, { "docid": "2188158", "title": "", "text": "SMITH, Circuit Judge. Christopher and Diane Freitas (“appellants”) attempted to negotiate a mortgage modification with their home mortgage loan servicer, Wells Fargo Home Mortgage, Inc. (“Wells Fargo”). After receiving conflicting information from Wells Fargo representatives, appellants stopped paying on their mortgage loan. Wells Fargo initiated foreclosure, and appellants sued for fraudulent misrepresentation and promissory estoppel. The district court granted Wells Fargo’s motion to dismiss both claims. We affirm. I. Background Appellants obtained a home loan through BNC Mortgage, Inc., a lending arm of Lehman Brothers Bank (“Lehman Brothers”). When Lehman Brothers entered bankruptcy in 2008, Wells Fargo began servicing appellants’ loan. Appellants attempted to negotiate a mortgage modification with Wells Fargo under the Home Affordable Modification Program (HAMP). Under HAMP, the mortgage servicer of an eligible homeowner offers him or her a “Trial Period Plan” agreement. This agreement allows the homeowner to make modified mortgage payments for a specified term. Appellants received conflicting information from various Wells Fargo representatives concerning their eligibility for a modification under HAMP. Based on this uncertain information, and believing they would be eligible for a modification under HAMP, appellants stopped making mortgage payments. Appellants defaulted, and Wells Fargo initiated foreclosure proceedings on appellants’ mortgage. Appellants filed a complaint in the Circuit Court of Stone County, Missouri, alleging fraudulent misrepresentation and promissory estoppel and requesting in-junctive relief. They specifically alleged that “[Wells Fargo’s] representatives insured [sic] Plaintiffs that they would qualify for a modification and their mortgage would be modified upon receipt of requested documentation.” Their complaint also alleged that they “have been unable to receive a consistent and candid answer from [Wells Fargo’s] representatives regarding a loan modification.” Finally, the complaint alleged that “[i]n reliance on [Wells Fargo’s] promise, Plaintiffs stopped paying their mortgage.... ” Wells Fargo removed the action to the district court, invoking diversity jurisdiction under 28 U.S.C. § 1332. Wells Fargo then moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted Wells Fargo’s motion to dismiss. II. Discussion Appellants ask this court to reverse the district court’s dismissal of" }, { "docid": "22239105", "title": "", "text": "Boyd v. U.S. Bank, N.A. ex rel. Sasco Aames Mortg. Loan Trust, Series 2003-1, 787 F.Supp.2d 747, 757 (N.D.Ill. 2011). Wigod is in the third group, basing claims directly on the TPP Agreements themselves. These plaintiffs avoid Astra because they claim rights not as third-party beneficiaries but as parties in direct privity with their lenders or loan servicers. In these third-generation cases, district courts have split. Including first- and second-generation cases, about 50 of the courts granted motions to dismiss in full. See, e.g., Nadan v. Homesales, Inc., No. CV F 11-1181 LJO SKO, 2011 WL 3584213 (E.D.Cal. Aug. 12, 2011); Vida v. OneWest Bank, F.S.B., No. 10-987-AC, 2010 WL 5148473 (D.Or. Dec. 13, 2010). In 30 or so cases, courts denied the motions in full or in part, allowing claims based on contract, tort, and/or state consumer fraud statutes to go forward. See, e.g., Allen v. CitiMortgage, Inc., No. CCB-10-2740, 2011 WL 3425665 (D.Md. Aug. 4, 2011); Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342 (D.Mass.2011). For particularly instructive discussions of some of the issues involved in these cases, compare In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No. 10-md-02193-RWZ, 2011 WL 2637222, at *3-6 (D.Mass. July 6, 2011) (multi-district litigation) (denying defendant’s motion to dismiss claims for breach of contract and violation of state consumer protection statutes), with Bourdelais v. J.P. Morgan Chase, No. 3:10CV670-HEH, 2011 WL 1306311, at *3-6 (E.D.Va. Apr. 1, 2011) (dismissing claims for breach of contract). See generally John R. Chiles & Matthew T. Mitchell, Hamp: An Overview of the Program and Recent Litigation Trends, 65 Consumer Fin. L.Q. Rep. 194, 195 (2011) (examining the “current litigation trends in this recent spate of HAMP-related lawsuits”). . Paragraph 1 provided: If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage." }, { "docid": "17222108", "title": "", "text": "2490975, 2010 U.S. Dist. LEXIS 59793 (E.D.Cal. June 16, 2010). Additionally, in a recent ease in the District of Massachusetts, Magistrate Judge Judith Dein dismissed a borrower’s third-party breach of contract claim because he was not an intended third-party beneficiary of the HAMP Servicer Agreement between his servicer and Fannie Mae. McKensi v. Bank of Am., N.A., No. 09-11940-JGD, 2010 WL 3781841, at *5-6, 2010 U.S. Dist. LEXIS 99540, at *14-15 (D.Mass. Sept. 22, 2010). At least one federal court has held to the contrary, however. Marques v. Wells Fargo Home Mortg., Inc., No. 09-cv-1985-L, 2010 WL 3212131, at *7, 2010 U.S. Dist. LEXIS 81879, at *19 (S.D.Cal. Aug. 12, 2010). Neither the HAMP Guidelines nor the Servicer Agreement states any intent to give borrowers a right to enforce a servicer’s obligations under the HAMP Guidelines. Marks v. Bank of Am., No. 10-8039, 2010 WL 2572988, at *4, 2010 U.S. Dist. LEXIS 61489, at *11 (D.Ariz. June 22, 2010). Thus, section 313(2)(a) of the Restatement (Second) of Contracts is inapplicable and the Court will analyze the Plaintiffs’ claim under section 313(2)(b). Section 313(2)(b) requires a showing that the Plaintiffs were intended to benefit from the contract and that third-party beneficiary claims are consistent with the terms of the contract and the policy underlying it. a. Intent The Defendants maintain that the Plaintiffs have failed to cite any contract terms in the Servicer Agreement suggesting that the Plaintiffs were intended to be third-party beneficiaries. As the Plaintiffs indicate, however, the purpose of HAMP is to help homeowners avoid foreclosure by obtaining loan modification: Under the Treasury Department’s (Treasury) Home Affordable Modification Program (HAMP), servicers will use a uniform loan modification process to provide eligible borrowers with sustainable monthly payments. All servicers must participate in HAMP for all eligible mortgage loans held in Fannie Mae’s portfolio^] U.S. Dep’t of the Treasury, Home Affordable Modification Program Guidelines, § VII, 610 (Mar. 4, 2009). The Fannie Mae Announcement 09-05R that the Plaintiffs quote in their brief but do not include as an exhibit states: On February 18, 2009, President Obama announced the Homeowner Affordability" }, { "docid": "10598471", "title": "", "text": "PNC Bank, No. 10-13831, 2011 WL 4027417, 2011 U.S. Dist. LEXIS 102603 (E.D.Mich. Sept. 12, 2011). The Michigan courts, and virtually every court reviewing the issue, have held that HAMP does not provide for a private cause of action. See Hart, supra (noting that there is no express or implied right to sue fund recipients under HAMP because HAMP does not create a private right of action); Hubert, supra (“Virtually every court has held that HAMP does not provide for a private cause of action.”); Singh v. Wells Fargo Bank, No. 1:10-cv-1659, 2011 WL 66167, at *7, 2011 U.S. Dist. LEXIS 3563, at *23 (E.D.Cal. Jan. 7, 2011) (“[I]t is well established that there is no private cause of action under HAMP.”); Cade v. BAC Home Loans Servicing, LP, No. H-10-4224, 2011 WL 2470733, at *2-3 (S.D.Tex. June 20, 2011) (“HAMP litigation is new and yet emerging; the majority of courts faced with HAMP questions, however, have determined that no private right of action to enforce lender compliance exists under HAMP.”); Inman v. Suntrust Mortg., Inc., No. 1:10-CV-1031, 2010 WL 3516309, at *2, 2010 U.S. Dist. LEXIS 91804, at *6 (E.D.Cal. Sept. 3, 2010) (“there is no private right of action provided under HAMP”); Zeller v. Aurora Loan Seros. LLC, No. 3:10-cv-00044, 2010 WL 3219134, at *1, 2010 U.S. Dist. LEXIS 80449, at *2 (W.D.Va. Aug. 10, 2010) (determining that HAMP does not create a private right of action for a borrower to recover for an alleged breach of a loan modification); Hoffman v. Bank of Amer., No. CIO-2121 SI, 2010 WL 2635773, *5, 2010 U.S. Dist. LEXIS 70455, *6 (N.D.Cal. June 30, 2010) (“Lenders are not required to make loan modifications for borrowers that qualify under HAMP nor does the servicer’s agreement confer an enforceable right on the borrower.”); Simon v. Bank of Am., N.A., No. 10-cv-00300, 2010 WL 2609436, at *10, 2010 U.S. Dist. LEXIS 63480, at *26-27 (D.Nev. June 23, 2010) (“Other courts have consistently held that the [HAMP] does not provide borrowers with a private cause of action against lenders.”); Marks v. Bank of Amer., N.A.," }, { "docid": "5622119", "title": "", "text": "pleaded. As the court previously explained in dismissing the SAC: In Nong v. Wells Fargo Bank, N.A., the Central District of California dismissed a similar complaint where a plaintiff alleged promissory estoppel. No. CV 10-1538 JVS (MLGx), 2010 U.S. Dist. LEXIS 136464, at *8-9 (C.D.Cal. Dec. 6, 2010). There, the plaintiff alleged that she detrimentally relied on Wells Fargo’s promises to grant her a HAMP loan modification “by not pursuing other strategies to avoid foreclosure.” Id. The court dismissed the promissory estoppel claim as insufficiently pleaded. Id. The court reasoned: where a plaintiff does not allege facts that could establish that she would have been successful in delaying the foreclosure sale, renegotiating her loan, and retaining possession of her home, dismissal is proper because the Complaint lacks a connection between her reliance on the alleged promise and losing her home to sustain her claim Id. (quoting Newgent [v. Wells Fargo Bank, N.A.], 2010 WL 761236, at *7 [ (S.D.Cal. Mar. 2, 2010) ]) (internal quotations omitted). Order, ECF No. 30 at 21. In their opposition, the Graybills acknowledge the court’s reliance on Nong, state that they disagree with it, but provide no reasoned basis for distinguishing it. Accordingly, the court dismisses the Graybills’ promissory estoppel claim. C. Fraud (Claim 3) “The elements of a cause of action for fraud in California are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, ie., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir.2009) (quoting Engalla v. Permanente Med. Group, Inc., 15 Cal.4th 951, 974, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997)). As described above, under Federal Rule of Civil Procedure 9(b), a party must plead with particularity the circumstances constituting fraud. In claim three, the Graybills allege common-law fraud based on the representations described above that were made by Wade Stoltz, Sharon Zuniga, Vickie Weldon, and similar statements by “Wells Fargo’s representatives.” See TAC ¶¶ 144-60. They also allege that Wells Fargo made fraudulent claims in the prior unlawful detainer action" }, { "docid": "4887085", "title": "", "text": "state a claim for promissory estoppel); Sheiman v. Litton Loan Servicing, L.P., No. 2:10cv567, 796 F.Supp.2d 753, 766, 2011 WL 2634097, at *12 (E.D.Va. 2011) (concluding that the plaintiff could not assert a cause of action based on promissory estoppel because the loan servicer never made a promise to modify the plaintiff’s loan); Argueta v. J.P. Morgan Chase, No. CIV. 2:11-441 WBS GGH, 2011 WL 2619060, at *3 (E.D.Cal. June 30, 2011) (holding that, \"even if the court construes plaintiff's [First Amended Complaint] as alleging an 'agreement to negotiate' a loan modification and concludes that such agreements are enforceable,” the plaintiff failed to allege a clear and unambiguous promise); Brennan v. Wells Fargo & Co., No. 5:11-cv-00921 JF (PSG), 2011 WL 2550839, at *2 (N.D.Cal. June 27, 2011) (“Here, there is no allegation that Wells Fargo promised to modify the terms of Brennan's loan or to postpone foreclosure indefinitely. At most, Wells Fargo may have promised to defer foreclosure until its review of Brennan’s application for a modification was complete. From the face of the complaint, it appears that Wells Fargo fulfilled this alleged promise.”); Adams v. JPMorgan Chase Bank, No. 1:10-CV-04226-RWS, 2011 WL 2532925, at *3 (N.D.Ga. June 24, 2011) (concluding that the lender’s promise to review the plaintiff's loan modification application “without binding itself to a result\" was \"too vague and indefinite to justify reasonable reliance” and that the plaintiff's decision to make reduced payments, \"foregoing other means to save [his] home,” was not detrimental reliance); Gill v. Wells Fargo Bank, N.A., No. 1:11-cv-00218 OWW GSA, 2011 WL 2470678, at *5 (E.D.Cal. June 20, 2011) (\"Wells Fargo’s alleged promise that the repayment plan would be in effect for three months and was still in effect is not a promise that Plaintiffs’ loan modification would be approved.”); Cade v. BAC Home Loans Servicing, LP, No. H-10-4224, 2011 WL 2470733, at *5 (S.D.Tex. June 20, 2011) (\"[C]ontinuation of payment is a pre-existing obligation and does not amount to detrimental reliance; the Cades were bound to make mortgage payments long before applying for HAMP consideration.”); Krouse v. BAC Home Loans Servicing," }, { "docid": "22239102", "title": "", "text": "the change was that loan servicers were converting trial modifications to permanent ones at a rate far below Treasury’s expectations. Treasury originally projected that 3 to 4 million homeowners would receive permanent modifications'under HAMP. Yet one year into the program, only 170,000 borrowers had received permanent modifications — fewer than 15 percent of the 1.4 million homeowners who had been offered trial plans. . Wells Fargo also asserted for the first time in oral argument that Wigod had never actually been qualified for loan modification. The assertion must be disregarded because it presents a factual question that cannot be resolved in deciding a Rule 12(b)(6) motion. E. g., Morrison v. YTB Int’l, Inc., 649 F.3d 533, 538 (7th Cir.2011). . We have identified more than 80 other federal cases in which mortgagors brought HAMP-related claims. The legal theories relied on by these plaintiffs fit into three groups. First, some homeowners tried to assert rights arising under HAMP itself. Courts have uniformly rejected these claims because HAMP does not create a private federal right of action for borrowers against servicers. See, e.g., Simon v. Bank of Am., N.A., No. 10-cv-00300-GMN-LRL, 2010 WL 2609436, at *10 (D.Nev. June 23, 2010) (dismissing claim because HAMP “does not provide borrowers with a private cause of action against lenders for failing to consider their application for loan modification, or even to modify an eligible loan”). In the second group, plaintiffs claimed to be third-party beneficiaries of their loan servicers’ SPAs with the United States. Most but not all courts dismissed these challenges as well, holding that borrowers were not intended third-party beneficiaries of the SPAs. Compare Villa v. Wells Fargo Bank, N.A., No. 10CV81 DMS (WVG), 2010 WL 935680, at *2-3 (S.D.Cal. Mar. 15, 2010) (granting motion to dismiss claims of plaintiff pursuing third-party beneficiary theory), and Escobedo v. Countrywide Home Loans, Inc., No. 09 cv1557 BTM (BLM), 2009 WL 4981618, at *2-3 (S.D.Cal. Dec. 15, 2009) (same), with Sampson v. Wells Fargo Home Mortg., Inc., No. CV 10-08836 DDP (SSx), 2010 WL 5397236, at *3 (C.D.Cal. Nov. 19, 2010) (\"Here, the court is persuaded" }, { "docid": "4887079", "title": "", "text": "is reasonable to conclude that all that is required to achieve justice is to put the promisee in the position he would have been in had he not acted in reliance upon the promise. Id. at 97. The Dixons allege that, before Wells Fargo’s promise induced them to stop making their payments, they were not in default. Returning their loan to non-default status would put them back in their previous position. By the same reasoning, they would be required to resume their mortgage payments in their original amount, with the missed payments being added into the loan balance amortized over the life of the loan. If the Dixons were unable to resume their payments, Wells Fargo could then proceed in foreclosure. But all of this remains speculative; assuming liability, the evidence presented at trial will no doubt illuminate the proper measure of reliance damages that the Court ought fashion. See Fuller & Perdue, supra at 53 (commenting that, “when courts work on the periphery of existing doctrine,” it becomes \"obvious” that the \"the process of 'measuring' and 'determining' [damages] is really a part of the process of creating them”). . In In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig., No. 10-md-02193-RWZ, 2011 WL 2637222 (D.Mass. July 6, 2011) (Zobel, J.), several individual mortgagors brought putative class actions against Bank of America, N.A. (\"BOA”), and its subsidiary, BAC Home Loans Servicing, LP (\"BAC”), alleging that the defendants improperly administered the federal Home Affordable Loan Modification Program (“HAMP”). Id. at *1. The plaintiffs all obtained home mortgage loans from BAC, on which they later defaulted. Id. To avoid foreclosure, they sought to participate in HAMP. Id. Pursuant to HAMP, BAC entered into a standard agreement with some of the plaintiffs for a temporary trial modification of their loan. Id. at *1-2. Under this Temporary Period Plan (\"TPP”), each homeowner made reduced mortgage payments based on his or her financial eligibility. Id. at *1. The TPP promised that, by complying with its terms for three months, the homeowner would receive a permanent HAMP modification on those same terms. Id." } ]

[ { "docid": "11940884", "title": "", "text": "is entitled to an earlier effective date because VA had a continuing duty to review the amounts available to him under both the old and the new pension programs and to “automatically” deem his improved pension election effective on the date his benefits under the improved pension program exceeded those under the old program. Therefore, the Court will examine all “relevant statutory [and other] provisions from which a duty to notify might have arisen.” Gold v. Brown, 7 Vet.App. 315, 317 (1995). A Public Law No. 95-588 Public Law No. 95-588 created a new pension program for non-service-connected veterans, “certain surviving spouses,” and “certain surviving children.” (For ease of reference, the term “pensioners” will be used to refer to all beneficiaries.) Although most eligible pensioners received more money under the improved pension program, that was not the ease for all, including the appellant. Presumably to provide for this situation, the statute provided that pensioners who did not elect to receive benefits under the new program “shall continue to receive pension at the monthly rate being paid to such person[s] on December 31, 1978.” Pub.L. No. 95-588 § 306(a)(2), 92 Stat. at 2508; see 38 U.S.C. § 1521 note (Savings Provision for Persons Entitled to Pension as of December 31, 1978; Other Provisions) (“§ 306”). The pensions received by those who did not elect to receive improved pension benefits are called “Section 306 pensions.” H.R.Conf.Rep. No. 1768, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.S.C.A.N. 5702, 5717. The proper amount of benefits for a particular pensioner under each pension program may change from year to year because the basis of calculation is different. Compare 38 U.S.C. § 521(b) (1977) (although § 521(b) is no longer in effect, § 306(a)(2) provides that a pensioner who did not elect to receive an improved pension “shall continue to receive pension at the monthly rate being paid to such person on December 31,1978, subject to all provisions of law applicable to basic eligibility for and payment of pension under section 521 ... of title 38, United States Code, as in effect on December" } ]

[ { "docid": "5924311", "title": "", "text": "acknowledged the disparate post-eligibility treatment of aid and attendance benefits for Medicaid recipients. The House Conference Report of the Omnibus Reconciliation Act of 1990 contained the following passage: (8) Charges Applicable in Cases of Certain Medicaid-Eligible Individuals. There are circumstances in which, under current law, a State may not actually be making payments to a nursing home on behalf of a resident who is eligible for Medicaid. For example, a nursing home resident may be receiving Veterans’ Administration aid and attendance payments. These payments are not taken into account in determining initial eligibility for Medicaid, but are considered, post-eligibility, in determining the amount of an individual’s monthly income that is available to be applied to the cost of care. H.R.Conf.Rep. No. 964, 101st Cong., 2d Sess. 843 (1990), reprinted in 1990 U.S.Code Cong. & Admin.News 2374, 2584. . Plaintiffs contend that the state defendant’s Medicaid policy violates the Veteran's benefit laws of the United States. In support of their argument plaintiffs rely solely on the following general policy statement in the legislative history of the Veterans and Survivors Improved Pension Act of 1978, 38 U.S.C. §§ 501-508, 521-523: It is intended that the new position system, as authorized by the reported bill, should: First, assure a level of income above the minimum subsistence level allowing veterans and their survivors to live out their lives in dignity. Second, prevent veterans and widows from having to turn to welfare assistance Third, provide the greatest pension for those with the greatest needs. Fourth, guarantee regular increases in pension which fully account for increases in the cost of living. H.R.Rep. No. 1225, 95th Cong., 2d Sess. 4 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5583, 5585. We agree with the district court that this statement alone provides no basis for finding that Aid and Attendance benefits must be treated in a specific way in the Medicaid statute." }, { "docid": "11940881", "title": "", "text": "2497 (1978). The regional office (RO) furnished the appellant with an election card, which he completed and returned. Supplemental Record (Suppl.R.) at 1. Just to the left of the appellant’s signature, the election card stated: “I understand [that] this election ... will not be accepted unless such election is now to my advantage.” Ibid. However, in September 1979, the RO advised the appellant that he would receive only $23.00 under the “improved pension program” instead of the $33.72 pension which he was receiving under the old program. R. at 20. The RO stated, “[W]e have not accepted your election and we will not take any further action on it unless you tell us to do so in writing.... You can make a new election at any time in the future and we will determine whether it is to your advantage.” Ibid. The appellant submitted another election form for the improved pension program in July 1980. Suppl.R. at 2. The form contained the same qualification as had the 1979 election card as to the election not being accepted unless advantageous to the beneficiary. Ibid. The RO responded that it still was not to the appellant’s benefit to transfer to the improved pension program and advised him exactly as it had in September 1979. Suppl.R. at 3. In August 1992, the appellant again elected to receive benefits under the improved pension program. R. at 24. The RO approved his election and granted him an effective date of October 1, 1992 (R. at 31), which was subsequently changed to September 1, 1992 (R. at 38). The appellant filed a Notice of Disagreement in April 1993, stating that he was entitled to “back benefits.” R. at 34. On his VA Form 1-9, the appellant wrote, I am asking for retroactive Improved Pension .... Whenever I would contact the [RO] in Baltimore, Md.[,] they would say I have the best selection. They did that for years. It wasn’t until August 4,1992 when I [was] hospitalized ... [that] a V.A. Counselor told me[] I [was] entitled to Improved Pension long ago. I am also asking for" }, { "docid": "21541991", "title": "", "text": "hospital medical examination report indicated that he had no history of angina and that his heart showed a normal sinus rhythm and no eardiomegaly. R. at 186. The examiner noted: “He does not have much trouble with his heart[;] however[,] he does not know what is wrong with his heart”. Ibid, (underlining in original). The “diagnosis” section of the report stated that “no heart disease was found”. R. at 198. As to the respiratory system, the examiner noted that the veteran was “uncooperative”; no rales or rhonchi were noted; chronic bronchial asthma was not confirmed. R. at 197-98. A March 1978 RO decision determined that the veteran showed no evidence of bronchial asthma “at this time” and that his “service[-]connected bronchial asthma condition is protected by the operation of law”, see 38 U.S.C. § 1159 (service connection “which has been in force for ten or more years shall not be severed on or after January 1, 1962”). The RO also denied pension benefits, finding that his disabilities were not sufficient to keep him from engaging in “substantial gainful employment”. R at 202-03. A May 1978 YA medical examination report found no heart disease and diagnosed: “History [of] bronchial asthma, chronic, in remission”. R. at 213,219. In October 1978, the veteran again filed with the RO a request for “pension benefits”. R. at 238. He stated that he had been totally disabled since August 1977, and had not worked since then except for doing odd jobs that his health would permit. R. at 240. A November 1978 VA medical examination report indicated no heart disease (R. at 268), and a December 1978 RO decision granted non-service-connected pension benefits based on the non-service-connected conditions that were found. R. at 270-71. The RO notified the veteran in January 1979 that he had been granted non-service-connected pension because his disabilities were “severe enough” to “prevent ... gainful employment”, and that the higher pension benefit would be substituted for his service-connected disability compensation benefit because under applicable law he could not receive both. R. at 273. The veteran’s pension payments continued until his death in" }, { "docid": "21541992", "title": "", "text": "in “substantial gainful employment”. R at 202-03. A May 1978 YA medical examination report found no heart disease and diagnosed: “History [of] bronchial asthma, chronic, in remission”. R. at 213,219. In October 1978, the veteran again filed with the RO a request for “pension benefits”. R. at 238. He stated that he had been totally disabled since August 1977, and had not worked since then except for doing odd jobs that his health would permit. R. at 240. A November 1978 VA medical examination report indicated no heart disease (R. at 268), and a December 1978 RO decision granted non-service-connected pension benefits based on the non-service-connected conditions that were found. R. at 270-71. The RO notified the veteran in January 1979 that he had been granted non-service-connected pension because his disabilities were “severe enough” to “prevent ... gainful employment”, and that the higher pension benefit would be substituted for his service-connected disability compensation benefit because under applicable law he could not receive both. R. at 273. The veteran’s pension payments continued until his death in January 1990. R. at 277-90,294. The veteran’s January 1990 Certificate of Death listed the immediate cause of death as “sudden death — ventricular fibrillation 30 min[utes]” and “previous myocardial infarction 1 [year]”; “congestive heart disease” was listed under “other significant conditions contributing to death”. R. at 294. The death certificate indicates that an autopsy was not performed. Ibid. In February 1990, the appellant submitted to the RO applications for DIC and burial benefits. R. at 296-97, 299-302. The RO, in March 1990, awarded burial expenses for a non-service-connected death (R. at 311) and denied DIC, stating that the veteran’s active military service did not materially contribute to or hasten his death (R. at 315-16). In April 1990, the appellant received a payment of accrued benefits (R. at 318); death pension was denied because the appellant’s income exceeded the death-pension income limit for a surviving spouse with no children (R. at 320). After filing an appeal to the BVA (R. at 322), the appellant testified under oath at a May 7, 1991, RO hearing that in-service" }, { "docid": "2048583", "title": "", "text": "the Secretary’s own interpretation supports, clear Congressional policy direction addressing the relationship between the Medicaid program, on the one hand, and various government cash assistance programs, including the VA pension program, on the other. The Secretary states that the federal Medicaid program was intended as a measure of last resort. Although the principle has been formulated in various ways, this Circuit recognizes that the Secretary’s interpretation of his own rules is entitled to a significant measure of judicial deference. Scott v. Bowen, 808 F.2d 1428 (11th Cir.1987); Parker v. Bowen, 788 F.2d 1512 (11th Cir.1986). Normally, the Secretary’s interpretation of its regulations must be sustained unless the interpretation is unreasonable or clearly erroneous. In this case, however, the Secretary seeks not only deference to its interpretation of its own regulation, 20 C.F.R. 416.1103(a)(3), but seeks deference to its interpretation of the purposes behind the Veterans Administration’s rules and regulations for determining benefits. a. Statutory Analysis Based upon an analysis of the Veterans’ and Survivors’ Pension Improvement Act of 1978 (VSPIA), the regulatory framework of the Medicaid and SSI programs, and the case law discussed herein, the Court finds that there is a substantial likelihood that Plaintiffs will prevail on the merits of their claim that amounts paid to them pursuant to 38 U.S.C. § 503(a)(8) are (1) intended as a reimbursement for medical expenses and (2) as such, should not be counted as “income” for purposes of determining Medicaid eligibility. The Veterans Administration Improved Pension (VAIP) program was created by the passage of the Veterans’ and Survivors’ Pension Improvement Act of 1978 to provide veterans and their dependents with a minimum monthly income to meet their daily needs. Pub.L. No. 95-588, 92 Stat. 2497 (codified at 38 U.S.C. §§ 501-08 and '38 U.S.C. §§ 521-23). Congress recognized that veterans who are more severely disabled have greater needs and established increasing guaranteed benefit levels for those who are (1) disabled; (2) disabled and housebound; and (3) disabled and in need of aid and attendance. Unlike its predecessor, the VAIP was designed as a “one-variable” pension plan. In computing a VAIP benefit," }, { "docid": "6925735", "title": "", "text": "BEAM, Circuit Judge. We are asked to decide the amount of restitution that the district court may impose when some of the acts constituting a mail fraud scheme antedate the indictment by more than eleven years. The district court determined that all amounts received after the commencement of the fraud are subject to a restitution order. We affirm. I. BACKGROUND On August 20, 1981, appellant Loren M. Welsand applied for pension benefits from the United States Veterans Administration, later the United States Department of Veterans Affairs (VA). The VA offers one pension program, open to those persons honorably discharged from a period of war time service who are disabled and who demonstrate financial eligibility. In his application for pension benefits dated August 20, 1981, Welsand claimed that he was not employed after February 1981 and that he had stocks, bonds and bank deposits worth only $500. However, appellant had substantial employment after February of 1981 and held over $16,000 of stock, bonds and bank accounts at the time of his application. He also had investments in real estate. As a result of these misrepresentations, the VA found Welsand qualified to receive a pension. After this initial determination of pension eligibility, the VA would send Wel-sand an annual questionnaire, as long as Welsand had verified his continued eligibility for pension benefits on the prior year’s questionnaire. This questionnaire, VA Form 21-0517, is formally titled a “Pension Eligibility Verification Report” and informally called an “EVR.” On each annual EVR, from 1983 to 1991, appellant reported that he had earned no employment income, owned no stocks, bonds or bank accounts, received no social security payments, received no rental income, and lived with his spouse. In fact, Welsand worked regularly from 1981 to 1985, and again in 1987; received monthly social security benefits beginning in 1985; owned stocks, bonds and bank accounts, worth in excess of $100,000 during much of this period; had rental income; and did not live with his spouse after 1986. Welsand’s misrepresentations on his EVR made the receipt of each subsequent year’s benefits possible, and automatically caused the VA to" }, { "docid": "22637389", "title": "", "text": "asked to submit evidence that the veteran condoned her actions. Appellant’s reply detailed the relationship she had with her husband before his death. In a September 26, 1978, administrative decision, the RO held that, due to an “administrative error,” appellant should not have been paid benefits as the widow of the veteran. Consequently, the RO terminated appellant’s award of death pension benefits effective July 1, 1978. Appellant submitted an NOD and in response the RO sent her a letter explaining in detail why her benefits were discontinued. She was informed that, if she still wished to disagree with the termination of her benefits, she should complete and return an enclosed form. Appellant did not respond. On June 28, 1986, appellant contacted the RO and requested that her VA death pension benefits be resumed effective from the time they were discontinued; she was subsequently informed by the RO that her claim could be reopened only if she submitted “new and material” evidence indicating she was not at fault in the separation between herself and the veteran. See 38 U.S.C. § 5108. Appellant wrote to her Representative in Congress, the Honorable Lindy Boggs, who subsequently wrote to the VA on appellant’s behalf in November of 1988. In January 1989, appellant again attempted to reopen her claim. The RO again refused to reopen the claim, finding that she had not submitted “new and material” evidence. She submitted an NOD on February 13, 1989. On March 15, 1989, the RO specifically asked appellant whether she and Patrick Johnson ever lived together as husband and wife. She responded that she and Patricia’s father, Patrick Johnson, had never lived together. This statement was deemed “new and material” evidence by the RO, and on March 24, 1989, she was awarded VA death pension benefits effective January 1989, with the payment date of February 1, 1989. Subsequently, appellant filed an NOD asking for an effective date of 1978 and not 1989. The RO denied an earlier effective date explaining that her benefits had been terminated based on evidence that a child was born during her separation from the" }, { "docid": "18876243", "title": "", "text": "his civil service pension provided more than $100 a month. If his civil service pension provided less than $100, for instance, $80, he would receive husband’s insurance benefits total-ling only the difference in the two benefit amounts, in this example, $20. The pension offset provision was made applicable to monthly insurance benefits payable beginning in December 1977 on the basis of applications filed in or after December 1977. P.L. 95-216, § 334(f) (1977); 20 C.F.R. § 404.408a(d). However, in the amendment Congress provided an exception to the pension offset provision. Subsection 334(g) of Public Law 95-216 provides, in pertinent part, that the pension offset to insurance benefits is not to apply to an individual (A) who is eligible for a government pension for any month within the 60-month period beginning with the month the amendment is enacted (December 1977), and (B) who, “at the time of application for or initial entitlement to” insurance benefits, “meets the requirements” of the Act “as it was in effect and being administered in January 1977.” This exception means that the pension offset does not apply to an individual eligible for a government pension in December 1977 through December 1982 and who meets the requirements for wife’s or husband’s insurance benefits under the Act as it was “in effect and being administered in January 1977.” II On November 1, 1977 plaintiff’s wife— Miriam Rosofsky — filed an application for old age retirement insurance benefits under the Act. On that same date plaintiff — an employee of the United States Treasury Department from 1928 through 1972 and now retired on a federal pension — filed an application for husband’s insurance benefits. In February 1978, the month plaintiff’s wife turned sixty-two, both plaintiff and his wife became eligible for and began receiving insurance benefits. In a letter dated September 20, 1978 the Social Security Administration notified plaintiff that his spousal insurance benefits must be reduced by the monthly amount of his pension, and that since his pension exceeded his spousal benefit, no benefits were payable and he had been overpaid $859.20 from March 1978 through August 1978." }, { "docid": "11940882", "title": "", "text": "being accepted unless advantageous to the beneficiary. Ibid. The RO responded that it still was not to the appellant’s benefit to transfer to the improved pension program and advised him exactly as it had in September 1979. Suppl.R. at 3. In August 1992, the appellant again elected to receive benefits under the improved pension program. R. at 24. The RO approved his election and granted him an effective date of October 1, 1992 (R. at 31), which was subsequently changed to September 1, 1992 (R. at 38). The appellant filed a Notice of Disagreement in April 1993, stating that he was entitled to “back benefits.” R. at 34. On his VA Form 1-9, the appellant wrote, I am asking for retroactive Improved Pension .... Whenever I would contact the [RO] in Baltimore, Md.[,] they would say I have the best selection. They did that for years. It wasn’t until August 4,1992 when I [was] hospitalized ... [that] a V.A. Counselor told me[] I [was] entitled to Improved Pension long ago. I am also asking for interest on all money witheld [sic] from me. R. at 52. On August 12, 1993, the appellant testified at a BVA hearing that the last time he had called the RO and asked whether he should change to the improved pension program was approximately two years before. R. at 61. He also testified that he thought he should have been automatically transferred to the improved pension program as soon as he was eligible for a higher award under it. R. at 61-62. In February 1994, the BVA denied the appellant’s claim, holding that an earlier effective date for an improved pension was not warranted because “[u]nder 38 C.F.R. § 3.713 (1993), an election to receive improved pension shall be effective the date of receipt of the election.” Fitcher L. Lewis, BVA 94-02164, at 4 (Feb. 23, 1994); R. at 7. The BVA also stated, “VA does not have a duty to automatically provide someone such as the veteran with personal notice of eligibility for benefits_” Ibid. This appeal followed. II. The appellant argues that he" }, { "docid": "11940880", "title": "", "text": "FARLEY, Judge: This is an appeal from a February 23, 1994, decision of the Board of Veterans’ Appeals (BVA) which denied the appellant’s claim for an effective date earlier than September 1, 1992, for “improved” pension benefits. The appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will grant the Secretary’s motion for summary affirmance and affirm the decision of the BVA. I. The appellant served in the Army from September 1950 until February 1951. Record (R.) at 14. He obtained a rating of individual unemployability due to non-service-connected disabilities in September 1971, and was awarded non-service-connected pension benefits with an effective date of April 1971. R. at 6, 17-18. In January 1979, title 38 of the U.S.Code was amended to “provide improvements in the pension program for certain veterans of a period of war with non-service-connected disabilities, [and] for certain surviving spouses of veterans of a period of war....” Veterans’ and Survivors’ Pension Improvement Act of 1978, Pub.L. No. 95-588, 92 Stat. 2497 (1978). The regional office (RO) furnished the appellant with an election card, which he completed and returned. Supplemental Record (Suppl.R.) at 1. Just to the left of the appellant’s signature, the election card stated: “I understand [that] this election ... will not be accepted unless such election is now to my advantage.” Ibid. However, in September 1979, the RO advised the appellant that he would receive only $23.00 under the “improved pension program” instead of the $33.72 pension which he was receiving under the old program. R. at 20. The RO stated, “[W]e have not accepted your election and we will not take any further action on it unless you tell us to do so in writing.... You can make a new election at any time in the future and we will determine whether it is to your advantage.” Ibid. The appellant submitted another election form for the improved pension program in July 1980. Suppl.R. at 2. The form contained the same qualification as had the 1979 election card as to the election not" }, { "docid": "9736021", "title": "", "text": "38 U.S.C. § 1310, and because (she argues) a section 1318 DIC claim had never before been adjudicated by VA, the BVA erred in requiring new and material evidence with regard to her current section 1318 claim. Br. at 4-5. Section 1318 was originally codified at 38 U.S.C. § 410(b), enacted in .1978 when it was added to the existing section 410 of title 38, U.S.Code, by the Veterans’ Disability Compensation and Survivors’ Benefits Act of 1978. Pub.L. No. 95-479, § 204, 92 Stat. 1560, 1564 (1978). In October 1982, the Veterans’ Compensation, Education, and Employment Amendments of 1982 amended section 410(b) to add “or entitled to receive” after “was in receipt of’. Pub.L. No. 97-306, § 112, 96 Stat. 1429, 1432 (1982). In 1988, section 410(b) was deleted and recodified in its present form at section 418 of title 38 by the Veterans’ Benefits Improvement Act of 1988. Pub.L. No. 100-687, § 1403, 102 Stat. 4105, 4130-31 (1988). Then, in 1991, as part of a general recodification, section 410 was redesignated as section 1310, and section 418 as section 1318, by the Department of Veterans Affairs Codification Act.Pub.L. No. 102-83, § 5, 105 Stat. 378, 406 (1991). Section 1318 was thus in existence at the time of the appellant’s 1983 claim and was then codified in section 410. The Secretary correctly notes, and the appellant’s counsel acknowledges in his reply brief, that 38 C.F.R. § 3.22 was also in existence at the time of the appellant’s claim in 1983. See 48 Fed.Reg. 41,160, 41,160-61 (1983) (to be codified at 38 C.F.R. § 3.22) (adding “would have been entitled to receive” language, in regulation dated September 14,1983, with October 1,1982, effective date). Thus, the current statutory and regulatory provisions at 38 U.S.C. § 1318 and 38 C.F.R. § 3.22 were in full force on September 30, 1983, when the RO first decided the appellant’s DIC claim. Although the appellant correctly notes that when a statute creates a new substantive right that did not exist at the time of a prior, final, unfavorable adjudication, a claim under that new right is" }, { "docid": "22637390", "title": "", "text": "See 38 U.S.C. § 5108. Appellant wrote to her Representative in Congress, the Honorable Lindy Boggs, who subsequently wrote to the VA on appellant’s behalf in November of 1988. In January 1989, appellant again attempted to reopen her claim. The RO again refused to reopen the claim, finding that she had not submitted “new and material” evidence. She submitted an NOD on February 13, 1989. On March 15, 1989, the RO specifically asked appellant whether she and Patrick Johnson ever lived together as husband and wife. She responded that she and Patricia’s father, Patrick Johnson, had never lived together. This statement was deemed “new and material” evidence by the RO, and on March 24, 1989, she was awarded VA death pension benefits effective January 1989, with the payment date of February 1, 1989. Subsequently, appellant filed an NOD asking for an effective date of 1978 and not 1989. The RO denied an earlier effective date explaining that her benefits had been terminated based on evidence that a child was born during her separation from the veteran, and that, since appellant did not reopen her claim by submitting “new and material” evidence until January 9, 1989, the\" earliest possible effective date of her benefits was January 9, 1989. She appealed to the BVA and was sent a Statement of the Case. Without reference to Mrs. Collins’ 1978 statement (which was consistent with her 1968 statement) that she had never lived with anyone other than the veteran, a statement repeated without change in 1989, the BVA reached the bare conclusion that the November 1978 RO decision did not involve “clear and unmistakable error.” No reasons or bases were given. It viewed the November 1988 letter from Representative Boggs as an informal claim. See 38 C.F.R. § 3.155 (1991) (a communication from a member of Congress indicating an intent to apply for VA benefits on behalf of a veteran may be regarded as an informal claim). The BVA deemed the effective date of the award to be December 1, 1988, rather than February 1, 1989. Appellant appealed to this Court. When appellant was" }, { "docid": "11915117", "title": "", "text": "that it seems to apply on its face to a claim for service connection, not to a claim for non-service-connected benefits, including pension. However, the Court notes as well that, even if that regulation were applicable to a pension claim, in this case the basis for the Board’s finding that the veteran “intended to kill himself as a means of escaping the mental anguish and/or criminal consequences resulting from the two murders” (R. at 9) would satisfy the § 3.302(b)(2) criterion of a “reasonable adequate motive” for the suicide attempt would not be clearly erroneous under 38 U.S.C. § 7261(a)(4), and thus the presumption established by § 3.302 under Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992), would not apply. On either analysis, the Board made no error with respect to § 3.302. III. Conclusion Upon consideration of the record, the appellant’s informal brief, and the Secretary’s brief, the Court holds that the appellant has not demonstrated that the BVA committed error — in its findings of fact, conclusions of law, procedural processes, articulation of reasons or bases, or application of the benefit-of-the-doubt rule — that would warrant remand or reversal under 38 U.S.C. §§ 5107(a),(b), 7104(a),(d)(1) and the analysis in Gilbert, supra. Therefore, the Court affirms the September 3, 1993, BVA decision. AFFIRMED. IV. Separate Views The author judge notes that the Court’s discussion of 38 C.F.R. §§ 3.302 and 3.354 illustrates still another “confusing tapestry” of VA regulations which should be the subject of review and reevaluation by the Secretary with a view toward providing clear guidance for the adjudication of VA benefits claims. This Court has had not infrequent occasion to call to the Secretary’s attention the need for reevaluation of VA regulations on a wide variety of subjects. See, e.g., Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991) (as to unemployability for compensation purposes involving 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, and 4.19); Karnas v. Derwinski 1 Vet.App. 308, 311 (1991) (as to standards set forth in §§ 4.16(c), 4.129, and 4.132, Diagnostic Code (DC) 9210); Talley v. Derwinski 2 Vet.App. 282, 285-86, 288 (1992)" }, { "docid": "1095643", "title": "", "text": "KRAMER, Judge, filed the opinion of the Court, in which NEBEKER, Chief Judge, joined. HOLDAWAY, Judge, filed a dissenting opinion. KRAMER, Judge: Appellant, Mae I. Ridings, appeals a May 14, 1991, decision of the Board of Veterans’ Appeals (BVA) which denied appellant’s claim of entitlement to waiver of recovery of an overpayment of improved death pension benefits on the ground that recovery would not be against equity and good conscience. The Court has jurisdiction under 38 U.S.C. § 7252. I. FACTUAL AND PROCEDURAL BACKGROUND The veteran, Thomas P. Rattenni, served on active duty from April 1943 to November 1945 and from October 1950 to November 1950. R. at 6. The veteran died in December 1978. R. at 6. In February 1979, the VA awarded appellant death pension benefits. In March 1979, the VA denied service connection for the cause of the veteran’s death. R. at 16. Appellant submitted statements of income and net worth to the VA in April 1980 and April 1988 which stated that she was receiving no Social Security income and did not expect to receive it for the next calendar year. R. at 19, 24. She began receiving improved pension benefits in May 1983. R. at 28. Appellant’s income statements from October 1986, August 1987, September 1988, and September 1989 all stated that she was not receiving any Social Security income. R. at 30, 37, 41, 50. On September 25, 1989, the VA wrote a letter to appellant proposing the termination of pension benefits, stating that the Social Security Administration (SSA) had informed the VA that appellant had been receiving $475.90 monthly from SSA since June 1, 1989. The VA informed appellant that she was in overpayment status and that she would continue to receive payments for a 60-day period until a final decision was made. However, appellant was cautioned that should she continue accepting payment and a determination was made that pension benefits would be terminated, appellant would be responsible for paying back the amount of overpayment. R. at 54-55. A report of contact dated September 29, 1989, stated that appellant had called the VA" }, { "docid": "16682672", "title": "", "text": "the PBGC’s reliance upon Chevron, supra, and Bridgestone/Firestone, Inc. v. PBGC, supra, is wholly misplaced. Additionally, allowance of the agency’s claim based on its chosen below-market discount rate would effectively allow the agency a claim for unmatured interest to the extent its rate is below market, in violation of § 502(b)(2) . See, H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 352-353 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 62 (1978), U.S.Code Cong. & Admin. News 1978, at 5747, 5848, 6308-09. See also, In re Chateaugay Corp., 109 B.R. 51 (Bankr.S.D.N.Y.1990), appeal pending (S.D.N.Y.); In re Allegheny International, Inc., 100 B.R. 247 (Bankr.W.D.Pa.1989), appeal pending, No. 89-1781 (W.D.Pa.). Were the PBGC correct in its assertion that a discount rate enforceable under otherwise applicable non-bankruptcy law governs allowance of claims in bankruptcy cases, bankruptcy courts would be required to value all claims for future payments based on whatever discount rate the government agency, or even a private party, might specify by regulation or contract, undermining the bedrock principle of equality of distribution to unsecured creditors. The Sixth Circuit has articulated that the objectives of Title IV of ERISA are as follows: The purposes of Title IV are stated expressly in § 1302(a): 1) to encourage the operation and continuation of private pension plans; 2) to protect employees’ pension benefits; and 3) to keep the insurance premiums paid to the PBGC as low as possible. In addition, the legislative history demonstrates the Congres sional purpose of imposing employer liability in order to prevent employers from abusing the termination insurance program by shifting their financial burdens under pension plans to the PBGC or by making unrealistic promises to employees. (citations omitted). A-T-O, Inc. v. Pension Benefit Guaranty Corp., 634 F.2d 1013, 1035 (6th Cir.1980); See, H.R.Rep. No. 99-300, 99th Cong.Sess. 278 (1985), reprinted in 1986 U.S.Code Cong. & Admin.News 42,929; See also, In re Resol Mfg. Co., Inc., 110 B.R. 858, 861 (Bankr.N.D.Ill.1990). Thus, based on its charter, the PBGC is clearly motivated to enhance its claims in these cases as much as possible. Dramatically, each one percent decrease in the discount rate" }, { "docid": "2048586", "title": "", "text": "Congress intended to provide special treatment for pass-through type receipts such as reimbursements for medical expenses. As set forth in the legislative history of the VSPIA: Generally, with limited exceptions, no distinction is made as to the source of non-pension income and all such available income will be calculated in determining the amount of pension the veteran will receive under the needs-based program. Thus, in order to align pension payments more closely to a pensioner’s available resources, and, hence, to actual need, the vast majority of the 18 income exclusions contained in the current pension law are eliminated. Certain exclusions with respect to unusual situations which do not conflict with the basic principles of the pension program are continued. For the most part, these exclusions were recommended by the Veterans Administration in draft proposals previously submitted to the Committee. They were directed toward those funds expended which are in the nature of one-time or pass-through type receipts, for example, unusual unreimbursed medical expenses and fire insurance proceeds. (Emphasis added). H.Rep. No. 1225, 95th Cong., 2d Sess. 28, reprinted in 1978 U.S.Code Cong, and Ad. News 5583, 5609. The Secretary argues, on the other hand, that the UME provision has been characterized by the VA itself as merely an adjustment to income for purposes of computing VA Pensions, citing for example, H.Rep. 95-1225 at 6, U.S.Code Cong, and Ad.News at 5586; H.Rep. 95-1225 at 11, U.S.Code Cong, and Ad.News at 5591. The Secretary further states that the objective of the UME provision was plainly stated in the 1971 House Report, which provides that “[i]n determining a pensioner’s income for pension purposes, exclude from the counting of income amounts paid by the claimant for unusual medical expenses.” H.Rep. 92-656, 92d Cong., 1st Sess. (1971), reprinted in 1971 U.S.Code Cong, and Ad.News 2180, 2182. The authority provided by the Secretary does not, however, reveal the underlying purpose of excluding unreimbursed medical expenses before computing pension benefits, which is the critical inquiry herein. The cited authority merely states that the VA in fact excludes unreimbursed medical expenses for purposes of determining income — a" }, { "docid": "22637388", "title": "", "text": "lived continuously with the veteran “except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse ...”). In response, appellant submitted a statement discussing her marriage to the veteran and their eventual separation. She also wrote: “Fve not live with no man, since or before, we married.” On August 15, 1968, appellant was awarded death pension benefits as custodian of the veteran’s children, and on February 12, 1969, she was awarded death pension as the widow of a veteran with additional allowances for the children. In May 1978, in accordance with a request from the RO, appellant submitted Patricia’s birth certificate; appellant and the veteran were listed as Patricia’s parents. In an accompanying letter appellant indicated that Patricia’s biological father was Patrick Johnson, not the veteran. The RO responded that Patricia’s birth certificate was considered proof that the separation was appellant’s fault, and, therefore, raised the question of her continued entitlement to death pension benefits. See 38 U.S.C. § 101(3). Appellant was asked to submit evidence that the veteran condoned her actions. Appellant’s reply detailed the relationship she had with her husband before his death. In a September 26, 1978, administrative decision, the RO held that, due to an “administrative error,” appellant should not have been paid benefits as the widow of the veteran. Consequently, the RO terminated appellant’s award of death pension benefits effective July 1, 1978. Appellant submitted an NOD and in response the RO sent her a letter explaining in detail why her benefits were discontinued. She was informed that, if she still wished to disagree with the termination of her benefits, she should complete and return an enclosed form. Appellant did not respond. On June 28, 1986, appellant contacted the RO and requested that her VA death pension benefits be resumed effective from the time they were discontinued; she was subsequently informed by the RO that her claim could be reopened only if she submitted “new and material” evidence indicating she was not at fault in the separation between herself and the veteran." }, { "docid": "11940883", "title": "", "text": "interest on all money witheld [sic] from me. R. at 52. On August 12, 1993, the appellant testified at a BVA hearing that the last time he had called the RO and asked whether he should change to the improved pension program was approximately two years before. R. at 61. He also testified that he thought he should have been automatically transferred to the improved pension program as soon as he was eligible for a higher award under it. R. at 61-62. In February 1994, the BVA denied the appellant’s claim, holding that an earlier effective date for an improved pension was not warranted because “[u]nder 38 C.F.R. § 3.713 (1993), an election to receive improved pension shall be effective the date of receipt of the election.” Fitcher L. Lewis, BVA 94-02164, at 4 (Feb. 23, 1994); R. at 7. The BVA also stated, “VA does not have a duty to automatically provide someone such as the veteran with personal notice of eligibility for benefits_” Ibid. This appeal followed. II. The appellant argues that he is entitled to an earlier effective date because VA had a continuing duty to review the amounts available to him under both the old and the new pension programs and to “automatically” deem his improved pension election effective on the date his benefits under the improved pension program exceeded those under the old program. Therefore, the Court will examine all “relevant statutory [and other] provisions from which a duty to notify might have arisen.” Gold v. Brown, 7 Vet.App. 315, 317 (1995). A Public Law No. 95-588 Public Law No. 95-588 created a new pension program for non-service-connected veterans, “certain surviving spouses,” and “certain surviving children.” (For ease of reference, the term “pensioners” will be used to refer to all beneficiaries.) Although most eligible pensioners received more money under the improved pension program, that was not the ease for all, including the appellant. Presumably to provide for this situation, the statute provided that pensioners who did not elect to receive benefits under the new program “shall continue to receive pension at the monthly rate being" }, { "docid": "11940887", "title": "", "text": "to remain in the old pension program, neither explicitly nor implicitly requires VA to perform periodic or continual comparative calculations or to notify the pensioner if greater benefits were available under the improved program. Nor does the joint explanatory statement accompanying the conference report on the compromise bill that became Public Law No. 95-588 hint that comparative calculations or notification were even contemplated. See H.R.Conf.Rep. No. 1768, 95th Cong., 2d Sess. 29-30 (1978). Therefore, since there is “no clear indication that the statute was enacted with an intent to impose such a duty on the Secretary, ... the Court cannot, otherwise, create such a duty.” Wells v. Principi, 3 Vet.App. 307, 309 (1992); see also Templeton v. OPM, 951 F.2d 338, 340 (Fed.Cir.1991) (“We know of no statute, regulation, or other law that imposes ... a duty on the [Federal Aviation Administration to inform an employee of his eligibility for retirement benefits], and we decline to imply one.”); Gold, 7 Vet.App. at 318. B. DVB Circular 21-79-8 and the VA Adjudication Procedure Manual The circular issued by the Department of Veterans Benefits (DVB) which implemented Public Law No. 95-588 “provided that all beneficiaries in receipt of the applicable pensions as of January 1979 were to be ‘furnished’ an election card and an instruction sheet.” Montalvo v. Brown, 7 Vet.App. 312, 313-14 (1995) (citing DVB CIRCULAR 21-79-3, Election PROCEdures for PL 95-588 (Circular), at 1 (February 22,1979)). The circular also provides: “When an election is re ceived, award action will be deferred if the monthly rate payable would not be at least $5 more that the rate currently being paid,” and that “[i]f improved [pension] is not the greater benefit, appropriate informational messages will be displayed and a letter will be generated.” Circular at 3, 5. The relevant sections in the VA Adjudication Procedure Manual, M21-1 (M21-1), are substantially identical to the circular’s provisions: when “an election is received, defer award action if the monthly rate of pension under the Improved Pension law would be less than the current monthly rate under the prior law.” M21-1, Part IV, § 20.08(a) (April" }, { "docid": "11940886", "title": "", "text": "31, 1978 ... ”) with 38 U.S.C. § 1521(b) — (i) (subsections listing factors which determine amount of benefits under improved pension program). Therefore, although it might have been disadvantageous to a pensioner to elect improved pension benefits in 1979, such an election may have become advantageous sometime after that. This was true for the appellant, although the record does not reflect when his improved pension benefits would have exceeded the section 306 pension benefits. The very nature of the statutory system, i.e., the requirement that a pensioner file an election in order to enter the improved pension program, inherently refutes the appellant’s argument that he was entitled to be automatically transferred to that pension program once the amount of benefits it would provide surpassed those of the section 306 pension. The transfer process could not begin until a pensioner filed an election to participate in the improved pension program. Furthermore, the language of § 306, the only part of Pub.L. No. 95-588 which deals with the election process and with the ability of pensioners to remain in the old pension program, neither explicitly nor implicitly requires VA to perform periodic or continual comparative calculations or to notify the pensioner if greater benefits were available under the improved program. Nor does the joint explanatory statement accompanying the conference report on the compromise bill that became Public Law No. 95-588 hint that comparative calculations or notification were even contemplated. See H.R.Conf.Rep. No. 1768, 95th Cong., 2d Sess. 29-30 (1978). Therefore, since there is “no clear indication that the statute was enacted with an intent to impose such a duty on the Secretary, ... the Court cannot, otherwise, create such a duty.” Wells v. Principi, 3 Vet.App. 307, 309 (1992); see also Templeton v. OPM, 951 F.2d 338, 340 (Fed.Cir.1991) (“We know of no statute, regulation, or other law that imposes ... a duty on the [Federal Aviation Administration to inform an employee of his eligibility for retirement benefits], and we decline to imply one.”); Gold, 7 Vet.App. at 318. B. DVB Circular 21-79-8 and the VA Adjudication Procedure Manual The circular" } ]

[ { "docid": "22773276", "title": "", "text": "Affairs and Schedule B-1. See Williamson, 828 F.2d at 252. Finally, as the bankruptcy court also noted, records of the Redlac Partnership continued to reflect Calder’s interest in the partnership after April, 1984. Thus, there is no indication that Calder absolutely and irrevocably divested himself of domination and control over his future partnership income in April, 1984. In view of these facts, we cannot say that the bankruptcy court’s finding of fraudulent intent was clearly erroneous. III. Allowance of Proof of Claim Under section 362(a), the filing of a bankruptcy petition creates a broad automatic stay protecting the property of the debtor. Ordinarily, any action taken in violation of the stay is void and without effect, Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir.1990), even where there is no actual notice of the existence of the stay, In re Smith, 876 F.2d 524, 526 (6th Cir.1989). Nevertheless, equitable principles may, in some circumstances, be applicable to claimed violations of the stay. The existing case law indicates that courts will apply equitable considerations at least where the creditor was without actual knowledge of a bankruptcy petition and the bankrupt’s unreasonable behavior contributed to the creditor’s plight. See, e.g., In re Smith Corset Shops, Inc., 696 F.2d 971, 976-77 (1st Cir.1982) (debtor not entitled to protection where debtor remained “stealthily silent” while creditor obtained a default judgment and execution from a state court in violation of the automatic stay); see also Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984) (laches barred debtor's attempt to void a 33-month-old state court judgment on the basis of the automatic stay). In our view, it would be inequitable to allow Calder to claim any protections of the automatic stay under section 362(a) to defeat the Jobs’ state court judgment. The basic undisputed fact apparent from the record is that Calder actively litigated the state court action and did not provide notice of the pending Chapter 13 proceeding until just before the state court was to enter a final judgment. Calder must bear some responsibility for his unreasonable delay in asserting his" } ]

[ { "docid": "14378592", "title": "", "text": "instead of void, we are not imposing added or undue burdens on the debtor as the Ninth Circuit believes will happen: If violations of the stay are merely voidable, debtors must spend a considerable amount of time and money policing and litigating creditor actions. If violations are void, however, debtors are afforded better protection and can focus their attention on reorganization. In re Schwartz, 954 F.2d at 571. We believe the Ninth Circuit overstates the difference between what would be required of debtors if actions in violation of the stay are void or voidable, because in either case, the debtor must respond in some fashion to the action. A debtor need only file a motion to dismiss on the grounds that the action violates section 362(a) and should be declared void. Indeed, this is the procedure followed in all cases in which the void/voidable issue has arisen. And unless equity dictates otherwise, these actions will be voided by the court in which the invalid action against the debtor was filed. We emphasize that we are not encouraging creditors to violate the stay, and we offer no new exceptions to the operation of the stay by the mere holding that actions in violation of the stay are voidable. Another reason for concluding that actions in violation of the automatic stay are voidable rather than void is the recognition by several circuits of an equitable exception to the operation of the stay. In re Colder, 907 F.2d 953; Matthews, 739 F.2d 249; In re Smith Corset Shops, 696 F.2d 971. By recognizing this exception, these circuits are really viewing actions taken in violation of the stay as voidable. In all three of these cases, the bankruptcy court acted within its equitable jurisdiction to lift the stay while the bankruptcy proceedings were taking place. Additionally, in all three cases, the courts found that the debtors were attempting to use the stay as a shield after an unreasonable delay in asserting the debtors’ rights under section 362. In In re Calder, the debtor failed to notify the creditor that it was in Chapter 13" }, { "docid": "10230512", "title": "", "text": "[or her] into bankruptcy.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1977) reprinted in U.S. Code Cong. & Admin.News 1978, pp. 5963, 6296 (emphasis supplied). See In re Taylor, 884 F.2d 478 (9th Cir.1989). The filing of the petition is supposed to envelop the debtor in the protective armor of the automatic stay, providing immunity from creditor’s attack absent bankruptcy court permission for the creditor to proceed. The Ninth Circuit adheres to the “general rule” that “actions taken in violation of the automatic stay are void and without effect.” In re Taylor, 884 F.2d 478, 483 (9th Cir.1989); In re Sambo’s Restaurants, Inc., 754 F.2d 811, 816 (9th Cir.1985). The courts throughout the country, however, are sharply split, with a significant minority asserting that actions in violation of the automatic stay should be treated as voidable only, not void. See, In re Lampkin, 116 B.R. 450, 451 (Bankr.D.Md.1990) (collecting cases and following the “majority” rule that such actions are void). Even under the majority view, the rule that actions violating the stay are void is not absolute. Important exceptions are set forth in the Bankruptcy Code and case law. Section 549(c), for example, allows a good faith post-petition purchaser of real property for fair consideration to retain either the property or a lien on the property under some circumstances. Similarly, Section 542(c) protects an entity without knowledge of the case that transfers estate property without permission. Under case law, the courts have carved out limited exceptions to deal with special problems, such as those created by the “stealthily silent” debtor who continues actively to defend lawsuits, sometimes for years after filing a bankruptcy petition, without informing the other parties or the court about the bankruptcy case until an adverse judgment is imminent. See, e.g., In re Calder, 907 F.2d 953, 956-57 (10th Cir.1990); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976-77 (1st Cir.1982). These cases apply traditional equitable principles of laches and estoppel to prevent deceptive or incredibly ignorant debtors from unfairly benefitting by an eleventh-hour ambush of" }, { "docid": "5406991", "title": "", "text": "in dispute. Briefly, the Miller Group leased the subject property to defendant Ruidoso Recreation, Inc. (Ruidoso) pursuant to a memorandum of lease dated April 14, 1982. Ruidoso then contracted with plaintiffs and B.C.R. for construction of an amusement facility known as Fantasy Mountain on the subject property. B.C.R. last performed work and supplied materials for Fantasy Mountain on June 14, 1985. Fantasy Mountain was open to the public on June 21, 1985. B.C.R. recorded a claim of lien against the fee interest of the Miller Group on September 11, 1985. Plaintiffs, who had also recorded lien claims against the subject property, commenced this action on May 13, 1986. Rui-doso then filed a petition for relief under Chapter 11 of the Bankruptcy Code on July 16, 1986. On November 4, 1986, B.C.R. filed its cross-claim to foreclose its mechanics lien on the fee interest of the Miller Group. Upon motion by the Miller Group, an order was issued in the Ruidoso bankruptcy proceedings on November 20, 1986, which declared that the leasehold interest of Ruidoso in the subject property was not protected by the automatic stay provisions of 11 U.S.C. § 362(a). After removal of this action by the FDIC, the Miller Group moved for summary judgment asserting that B.C.R.’s cross-claim, filed on November 4, 1986, and based upon a claim of lien recorded on September 11, 1985, was not timely under N.M.StatAnn. § 48-2-10, which provides in pertinent part that: “[n]o lien ... [is binding] for a longer period than one year after the claim has been filed unless the proceedings have been commenced in a court of competent jurisdiction within that time to enforce the lien____” B.C.R. conceded that its foreclosure claim was filed outside the one-year period under section 48-2-10, but argued that the automatic stay arising from the Ruidoso bankruptcy prevented it from foreclosing on the Miller Group’s fee interest. According to B.C.R., the statutory enforcement period under section 48-2-10 was tolled pursuant to 11 U.S.C. § 108(c), which provides in relevant part: ... if applicable nonbankruptcy law ... fixes a period for commencing or continuing a" }, { "docid": "5406994", "title": "", "text": "the district court that because B.C.R. was attempting to foreclose its mechanics lien against only the Miller Group’s fee interest and not the leasehold interest of Ruidoso, the debtor, B.C.R.’s foreclosure claim was not stayed by section 362 and, therefore, not subject to the provisions of section 108(c)(2). B.C.R. contends that even though it was seeking to satisfy a debt out of property that stood in the name of persons other than a debtor, section 362 makes no such distinction but, instead, bars any action to collect or recover a claim against a debtor from any source whatsoever, not just a debtor. Therefore, according to B.C.R. it was stayed from filing its foreclosure claim and protected by section 108(c)(2). We agree with B.C.R.’s position. The stay provisions of section 362 are broad. The stay protects not only property of the estate but also prohibits “any act to collect ... or recover a claim against the debt- or....” See 11 U.S.C. § 362(a)(6). Bankruptcy courts, construing section 362, have held that it precludes foreclosure of property when a debtor has a “leasehold” or “possessory” interest in the property and the debt sought to be satisfied out of the property is that of the debtor. In re Pioneer Valley Indoor Tennis Center, Inc., 20 B.R. 884, 885 (Bankr.D.Mass.1982); In re Barksdale, 15 B.R. 731, 732 (Bankr.W.D.Va.1981). Here, B.C.R.’s foreclosure claim was based upon a debt incurred by Ruidoso. Therefore, B.C.R.’s foreclosure claim was stayed by section 362, and the tolling provisions of section 108(c) applied to the claim. III. The Miller Group also argues that B.C.R. is not entitled to recover on its mechanics lien because it failed to plead and prove that it was a licensed contractor as required by N.M.StatAnn. § 60-13-30 (1978). However, there is no indication in the record that the Miller Group raised this precise issue to the district court. Under these circumstances, the Miller Group is precluded from arguing the issue on appeal. See, e.g., Baker v. Penn Mut. Life Ins. Co., 788 F.2d 650, 663 (10th Cir.1986). Accordingly, the judgment of the United States District" }, { "docid": "1870355", "title": "", "text": "Bankruptcy Code § 362 includes a statutory method for raising and establishing potential equitable exceptions so that a court may assure that enforcement of the unscheduled property provi sions does not, in qualifying circumstances, work unduly harsh and inequitable results. A bankruptcy court is authorized by Bankruptcy Code § 362(d) to “annul” an automatic stay. 11 U.S.C. § 362(d). This permits relief from stay to be granted retroactively, the granting of which entails equitable analysis. Natl Envtl. Waste Corp. v. City of Riverside (In re Nat’l Envtl. Waste Corp.), 129 F.3d 1052, 1054-55 (9th Cir.1997); Williams v. Levi (In re Williams), 323 B.R. 691, 699-702 (9th Cir. BAP2005), aff'd, 204 Fed.Appx. 582 (9th Cir.2006); 3 Collier 15th ed. rev. ¶ 362.07[1], By means of the power to annul the stay, a bankruptcy court has authority to prevent unduly harsh outcomes that would offend principles of equity. It is against this background that courts have considered the legal status of acts taken in violation of the Bankruptcy Code’s automatic stay. In most circuits, including this circuit, acts in violation of the automatic stay are void ab initio, not merely voidable, and equitable adjustments are made through the process of the statutory stay relief remedy of annulling the stay. Schwartz v. United States (In re Schwartz), 954 F.2d 569, 572-73 (9th Cir. 1992); accord, Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969 (1st Cir.1997); Appeal of Prudential Savings Bank (In re Siciliano), 13 F.3d 748, 750 (3d Cir.1994); Job v. Calder (In re Calder), 907 F.2d 953, 956 (10th Cir.1990); 48th St. Steakhouse, Inc. v. Rockefeller Group, Inc. (In re 48th St. Steakhouse, Inc.), 835 F.2d 427, 431 (2d Cir.1987); Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670, 675 (11th Cir.1984); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); 3 Collier 15th ed. rev. ¶ 362.11[1]; cf, Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 84 L.Ed. 370 (1940). Some circuits describe actions in violation of the stay as voidable. Jones v. Garcia (In re Jones), 63 F.3d 411, 412 (5th" }, { "docid": "14378593", "title": "", "text": "not encouraging creditors to violate the stay, and we offer no new exceptions to the operation of the stay by the mere holding that actions in violation of the stay are voidable. Another reason for concluding that actions in violation of the automatic stay are voidable rather than void is the recognition by several circuits of an equitable exception to the operation of the stay. In re Colder, 907 F.2d 953; Matthews, 739 F.2d 249; In re Smith Corset Shops, 696 F.2d 971. By recognizing this exception, these circuits are really viewing actions taken in violation of the stay as voidable. In all three of these cases, the bankruptcy court acted within its equitable jurisdiction to lift the stay while the bankruptcy proceedings were taking place. Additionally, in all three cases, the courts found that the debtors were attempting to use the stay as a shield after an unreasonable delay in asserting the debtors’ rights under section 362. In In re Calder, the debtor failed to notify the creditor that it was in Chapter 13 proceedings and actively participated in state court litigation while in bankruptcy proceedings. The Tenth Circuit recognized that generally, actions in violation of the stay are invalid regardless of notice of the stay. But where the debtor unreasonably withholds notice, and where the creditor would be prejudiced, the debtor cannot use the automatic stay provision as “a trump card played after an unfavorable result was reached in state court.” In re Calder, 907 F.2d at 956-57. In Matthews, the bankruptcy court found the debtor, who initiated the claim while in Chapter 13 proceedings, and who “unreasonably and inexcusably delayed asserting his claim,” guilty of laches which prevented the court from nullifying the three-year-old state order in favor of the creditor. Matthews, 739 F.2d at 251. In In re Smith Corset Shops, the debtor knew that the creditor, who did not know that the debtor began bankruptcy proceedings four days earlier, obtained a default judgment from the state court. Although the debtor watched as the constable removed his property from his warehouse, it was only after removal" }, { "docid": "22332831", "title": "", "text": "not encouraging creditors to violate the stay, and we offer no new exceptions to the operation of the stay by the mere holding that actions in violation of the stay are voidable. Another reason for concluding that actions in violation of the automatic stay are voidable rather than void is the recognition by several circuits of an equitable exception to the operation of the stay. In re Calder, 907 F.2d 953; Matthews, 739 F.2d 249; In re Smith Corset Shops, 696 F.2d 971. By recognizing this exception, these circuits are really viewing actions taken in violation of the stay as voidable. In all three of these cases, the bankruptcy court acted within its equitable jurisdiction to lift the stay while the bankruptcy proceedings were taking place. Additionally, in all three cases, the courts found that the debtors were attempting to use the stay as a shield after an unreasonable delay in asserting the debtors’ rights under section 362. In In re Colder, the debtor failed to notify the creditor that it was in Chapter 13 proceedings and actively participated in state court litigation while in bankruptcy proceedings. The Tenth Circuit recognized that generally, actions in violation of the stay are invalid regardless of notice of the stay. But where the debtor unreasonably withholds notice, and where the creditor would be prejudiced, the debtor cannot use the automatic stay provision as “a trump card played after an unfavorable result was reached in state court.” In re Calder, 907 F.2d at 956-57. In Matthews, the bankruptcy court found the debtor, who initiated the claim while in Chapter 13 proceedings, and who “unreasonably and inexcusably delayed asserting his claim,” guilty of laches which prevented the court from nullifying the three-year-old state order in favor of the creditor. Matthews, 739 F.2d at 251. In In re Smith Corset Shops, the debtor knew that the creditor, who did not know that the debtor began bankruptcy proceedings four days earlier, obtained a default judgment from the state court. Although the debtor watched as the constable removed his property from his warehouse, it was only after removal" }, { "docid": "22332830", "title": "", "text": "of void, we are not imposing added or undue burdens on the debtor as the Ninth Circuit believes will happen: If violations of the stay are merely voidable, debtors must spend a considerable amount of time and money policing and litigating creditor actions. If violations are void, however, debtors are afforded better protection and can focus their attention on reorganization. In re Schwartz, 954 F.2d at 571. We believe the Ninth Circuit overstates the difference between what would be required of debtors if actions in violation of the stay are void or voidable, because in either case, the debtor must respond in some fashion to the action. A debtor need only file a motion to dismiss on the grounds that the action violates section 362(a) and should be declared void. Indeed, this is the procedure followed in all eases in which the void/voidable issue has arisen. And unless equity dictates otherwise, these actions ' will be voided by the court in which the invalid action against the debtor was filed. We emphasize that we are not encouraging creditors to violate the stay, and we offer no new exceptions to the operation of the stay by the mere holding that actions in violation of the stay are voidable. Another reason for concluding that actions in violation of the automatic stay are voidable rather than void is the recognition by several circuits of an equitable exception to the operation of the stay. In re Calder, 907 F.2d 953; Matthews, 739 F.2d 249; In re Smith Corset Shops, 696 F.2d 971. By recognizing this exception, these circuits are really viewing actions taken in violation of the stay as voidable. In all three of these cases, the bankruptcy court acted within its equitable jurisdiction to lift the stay while the bankruptcy proceedings were taking place. Additionally, in all three cases, the courts found that the debtors were attempting to use the stay as a shield after an unreasonable delay in asserting the debtors’ rights under section 362. In In re Colder, the debtor failed to notify the creditor that it was in Chapter 13" }, { "docid": "19256447", "title": "", "text": "the offending party is irrelevant. As such, they are without legal effect. From the law’s point of view, they simply did not happen. Paige, 413 B.R. at 915 (footnotes omitted). The one arguable exception to this long list of Tenth Circuit cases is Calder v. Job (In re Calder), 907 F.2d 953, 956-57 (10th Cir.1990). In that case the debtor engaged in lengthy state court litigation with a third party who was unaware of the bankruptcy filing, and it was only after having a judgment entered against him in the state court matter that debtor Calder informed the third party that he had been in bankruptcy all along and thus the state court litigation and judgment were all void. In those circumstances, essentially on equitable or “clean hands” grounds, the Tenth Circuit refused to enforce the stay. Strictly speaking, none of the Tenth Circuit cases involved an out-of-possession debtor who “willingly” violated the automatic stay, as did the Tippetts. So it is conceivable that the Tenth Circuit, faced with exactly these facts, might take the same position as the Tippetts cases. But given the single strand that runs through all the Tenth Circuit cases of declaring stay violations void ab initio, and given the unnecessary and unsupported conceit that the Tippetts cases and their provenance have created, that would seem to be quite unlikely. Particularly is that the case here where an out-of-possession (chapter 7) debtor has acted to cause so much mischief for so many parties. Nor is the Tenth Circuit likely to yield to other circuits that view stay violations are voidable rather than void. For example, in Sikes, 881 F.2d at 178-79, plaintiffs/appellants had filed a personal injury claim against defendant who had, unknown to plaintiffs, filed a chapter 11 petition. Defendant maneuvered to preclude the modification of the stay to allow the refiling of the complaint until after the statute of limitations had passed. The Fifth Circuit, in a divided ruling, first held that “the term ‘void’ can only be properly applied to those [transactions] ... that are of no effect whatsoever, mere nullities, ... and" }, { "docid": "19256446", "title": "", "text": "district court after defendants had filed chapter 11 petitions; plaintiffs’ appeal of summary judgment dismissed for lack of properly entered final judgment); Franklin Sav. Assoc. v. Office of Thrift Supervision, 31 F.3d 1020, 1022 (10th Cir.1994) (bill of costs submitted in district court case postpetition; request for annulment of stay denied and government required to resubmit bill of costs); Goldston v. United States (In re Goldston), 104 F.3d 1198, 1201 (10th Cir.1997) (IRS assessment in violation of stay during chapter 11 case was void in subsequent chapter 13 case; “void is void, whatever the context”. Sanction was for IRS to lose its secured status.); see Kalb v. Feuerstein, 308 U.S. 433, 438, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (Wisconsin state court did not have jurisdiction to confirm sheriffs sale and dispossess farmer debtors who had filed bankruptcy petition). The Bankruptcy Court for the District of Utah summarized it well: In the Tenth Circuit, actions taken in violation of the automatic stay are void ab initio, and knowledge of the stay on the part of the offending party is irrelevant. As such, they are without legal effect. From the law’s point of view, they simply did not happen. Paige, 413 B.R. at 915 (footnotes omitted). The one arguable exception to this long list of Tenth Circuit cases is Calder v. Job (In re Calder), 907 F.2d 953, 956-57 (10th Cir.1990). In that case the debtor engaged in lengthy state court litigation with a third party who was unaware of the bankruptcy filing, and it was only after having a judgment entered against him in the state court matter that debtor Calder informed the third party that he had been in bankruptcy all along and thus the state court litigation and judgment were all void. In those circumstances, essentially on equitable or “clean hands” grounds, the Tenth Circuit refused to enforce the stay. Strictly speaking, none of the Tenth Circuit cases involved an out-of-possession debtor who “willingly” violated the automatic stay, as did the Tippetts. So it is conceivable that the Tenth Circuit, faced with exactly these facts, might take the" }, { "docid": "22027178", "title": "", "text": "that there was neither error nor an abuse of the discretion afforded the court by section 362(d). The judgment of the district court is AFFIRMED. . 11 U.S.C. § 362(a). . 11 U.S.C. § 549(c). . Picco v. Global Marine Drilling Co., 900 F.2d 846, 850 (5th Cir.1990), citing Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir.1989). See also In re Calder, 907 F.2d 953 (10th Cir.1990) (allowing proof of claim based on state court judgment entered after bankruptcy petition filed); In re Ward, 837 F.2d 124 (3rd Cir.1988) (post-stay foreclosure and sale is valid if purchaser qualifies for section 549(c) exception); In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir.1984) (bankruptcy courts power to \"annul” stay includes retroactive validation of acts in violation of the stay); Matthews v. Rosene, 739 F.2d 249 (7th Cir.1984) (laches barred debtor’s attempt to void state court judgment entered after automatic stay); In re Smith Corset Shops, Inc., 696 F.2d 971 (1st Cir.1982) (post-stay state court default judgment and execution of that judgment not void where debtor concealed bankruptcy filing from creditor). Perhaps our language in Picco and Sikes occasioned some confusion in the courts á quo. Our statement in Picco that actions taken in violation of the stay are voidable must be understood in context. It is the effect of the stay itself which is voidable, subject to the broad discretion afforded a bankruptcy judge under section 362. In this case, the district court merely exercised its discretion to modify the stay, as section 362(d)(3) authorizes, thereby validating the foreclosure and transfer of title to the Garcias. . 11 U.S.C. § 362(d)(3). . Compare Calder, supra, 907 F.2d at 956 (\"courts will apply equitable considerations at least where the creditor was without actual knowledge of a bankruptcy petition and the bankrupt's unreasonable behavior contributed to the bankrupt's plight”). . The bankruptcy judge found that the Garcias were not subject to the automatic stay's effect because they qualified for the good faith purchaser exemption in 11 U.S.C. § 549(c). This provision serves as an exception to the discretionary authority of the" }, { "docid": "13803731", "title": "", "text": "to describe an act in violation of the stay as “invalid” since such an act is capable of being cured or ratified pursuant to 11 U.S.C. § 362(d). The terminology is also important for purposes apportioning the burdens in determining whether retroactive relief from the stay is merited. The term voidable implies that the act taken in violation of the stay is valid unless some party, presumably the debtor, takes some action to void it. The stay exists from the moment of filing and is enforceable until such time as the stay is lifted. Thus, it should not be the debtor’s burden to void an act taken in violation of the stay. See generally Easley v. Pettibone Michigan Corp., 990 F.2d 905. Use of the term invalid, however, properly places the burden of rectifying an act in violation of the stay upon the creditor. Even were acts in violation of the stay properly described as “void,” there are clear, although limited, exceptions to the rule. For example, where the “debtor unreasonably withholds notice of the stay and the creditor would be prejudiced if the debtor is able to raise the stay as a defense, or where the debtor is attempting to use the stay unfairly as a shield to avoid an unfavorable result,” the protections of section 362(a) are unavailable to the debtor. Easley, at 911. Accord In re Colder, 907 F.2d 953, 956 (10th Cir.1990) (“[Cjourts will apply equitable considerations at least where the creditor was without actual knowledge of a bankruptcy petition and the bankrupt’s unreasonable behavior contributed to the creditor’s plight.”); Matthews v. Rosene (In re Matthews), 739 F.2d 249 (7th Cir.1984) (laches barred attempt to void judgment as violative of the stay); In re Smith Corset Shops, Inc., 696 F.2d 971, 976-77 (1st Cir.1982) (debtor remained “stealthily silent” while creditor obtained default judgment); Tim Wargo & Sons, Inc. v. Equitable Life Assurance Society, 34 Ark.App. 216, 809 S.W.2d 375 (Ark.Ct. App.1991). Acts in violation of the stay are invalid until such time as relief from stay is granted. Accordingly, the debtor argues, the state court order" }, { "docid": "5406995", "title": "", "text": "when a debtor has a “leasehold” or “possessory” interest in the property and the debt sought to be satisfied out of the property is that of the debtor. In re Pioneer Valley Indoor Tennis Center, Inc., 20 B.R. 884, 885 (Bankr.D.Mass.1982); In re Barksdale, 15 B.R. 731, 732 (Bankr.W.D.Va.1981). Here, B.C.R.’s foreclosure claim was based upon a debt incurred by Ruidoso. Therefore, B.C.R.’s foreclosure claim was stayed by section 362, and the tolling provisions of section 108(c) applied to the claim. III. The Miller Group also argues that B.C.R. is not entitled to recover on its mechanics lien because it failed to plead and prove that it was a licensed contractor as required by N.M.StatAnn. § 60-13-30 (1978). However, there is no indication in the record that the Miller Group raised this precise issue to the district court. Under these circumstances, the Miller Group is precluded from arguing the issue on appeal. See, e.g., Baker v. Penn Mut. Life Ins. Co., 788 F.2d 650, 663 (10th Cir.1986). Accordingly, the judgment of the United States District Court for the District of New Mexico is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . The Miller Group also appealed that aspect of the judgment entered in favor of Nail Plumbing. However, on May 2, 1990, this court entered an order granting the Miller Group's motion to dismiss Nail Plumbing as a party. . It is clear from the record that Ruidoso was still protected by the automatic stay when B.C.R. filed its cross-claim on November 4, 1986. Thus, B.C.R., by arguing that it was prevented from filing its cross-claim because of the stay arising out of the Ruidoso bankruptcy, necessarily admits that its cross-claim was filed in violation of that stay. Under the law of this circuit, any action taken in violation of the stay is void and without effect. Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d" }, { "docid": "5406996", "title": "", "text": "Court for the District of New Mexico is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . The Miller Group also appealed that aspect of the judgment entered in favor of Nail Plumbing. However, on May 2, 1990, this court entered an order granting the Miller Group's motion to dismiss Nail Plumbing as a party. . It is clear from the record that Ruidoso was still protected by the automatic stay when B.C.R. filed its cross-claim on November 4, 1986. Thus, B.C.R., by arguing that it was prevented from filing its cross-claim because of the stay arising out of the Ruidoso bankruptcy, necessarily admits that its cross-claim was filed in violation of that stay. Under the law of this circuit, any action taken in violation of the stay is void and without effect. Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir. 1990). Apparently, B.C.R. believes that any violation of the stay was cured by the bankruptcy court's subsequent lifting of the stay at the request of the Miller Group on November 20, 1986. We need not address B.C.R.’s apparent violation of the stay for two reasons. First, the parties have not raised the issue on appeal and, second, this court has recently recognized an equitable exception to claimed violations of the stay, see In re Calder, 907 F.2d 953, 956 (10th Cir. 1990), and, therefore, a violation of the stay is not, in our view, a jurisdictional issue that must be examined sua sponte, see Burlington Northern, Inc. v. Northwestern Steel & Wire Co., 794 F.2d 1242, 1247 (7th Cir.1986) (court is not \"at liberty to carve out an equitable exception to a jurisdictional rule\")." }, { "docid": "13622051", "title": "", "text": "this Court. This Court has carefully considered the record and applicable case law in seeking to resolve this dispute in a fair and equitable manner. In so doing, the Court starts with the premise that neither party is blameless for the current predicament they have, together, created. To obtain relief from the automatic stay pursuant to § 362(d), a creditor must show the court that its interest in the debtor’s property is sufficiently clear and in need of protection to justify exempting the property from the normal course of bankruptcy proceedings. See Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 157 F.3d 169 (2nd Cir.1998); First National Bank v. Turley, 705 F.2d 1024 (8th Cir.1983); Matthews v. Rosene, 739 F.2d 249 (7th Cir.1984). Actions taken in violation of the automatic stay are generally void ab initio, In re 48th Street Steakhouse, Inc., 835 F.2d 427 (2nd Cir.1987), even where there is no actual notice of the existence of the stay. See In re Colder, 907 F.2d 953 (10th Cir.1990); In re Smith, 876 F.2d 524 (6th Cir.1989). Therefore, the automatic stay should only be annulled to give effect to actions taken in violation of the stay in limited circumstances. See Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc, supra; In re Lizeric Realty Corp., 188 B.R. 499 (Bankr.S.D.N.Y.1995). It has been noted that “any equitable exception to the stay should be narrow and only applied in extreme circumstances.” In re Shamblin, 890 F.2d 123, 126 (9th Cir.1989); In re Williams, 124 B.R. 311 (Bankr.C.D.Cal.1991) (power to annul automatic stay must be exercised sparingly). It is well recognized that a determination of whether to grant relief from stay retroactively is within the wide latitude of the Court with each decision being considered on a case-by-case basis. See In re Soares, 107 F.3d 969 (1st Cir.1997); In re Syed, 238 B.R. 133, 144 (Bankr.N.D.Ill.1999). The party seeking retroactive lift stay relief has the burden of proving that the action taken in violation of the stay falls within the narrow exceptions to the rule voiding actions taken in violation of the" }, { "docid": "5406993", "title": "", "text": "civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of — ... (2) 30 days after notice of the termination or expiration of the stay under section 362____ The district court agreed with B.C.R. and denied the Miller Group’s motion. Thereafter, the district court, following a bench trial, entered its judgment in favor of McCarthy Construction, Nail Plumbing, and B.C.R. II. On appeal, neither the Miller Group nor B.C.R. disputes that when a claim to foreclose a mechanics lien falls within the scope of the automatic stay, the enforcement period governing the claim is tolled by section 108(c). See In re Hunters Run Ltd. Partnership, 875 F.2d 1425, 1426-29 (9th Cir. 1989). As briefed by the parties, the primary question presented on appeal is whether B.C.R.’s cross-claim fell within the scope of the automatic stay. The Miller Group reasserts its argument raised in the district court that because B.C.R. was attempting to foreclose its mechanics lien against only the Miller Group’s fee interest and not the leasehold interest of Ruidoso, the debtor, B.C.R.’s foreclosure claim was not stayed by section 362 and, therefore, not subject to the provisions of section 108(c)(2). B.C.R. contends that even though it was seeking to satisfy a debt out of property that stood in the name of persons other than a debtor, section 362 makes no such distinction but, instead, bars any action to collect or recover a claim against a debtor from any source whatsoever, not just a debtor. Therefore, according to B.C.R. it was stayed from filing its foreclosure claim and protected by section 108(c)(2). We agree with B.C.R.’s position. The stay provisions of section 362 are broad. The stay protects not only property of the estate but also prohibits “any act to collect ... or recover a claim against the debt- or....” See 11 U.S.C. § 362(a)(6). Bankruptcy courts, construing section 362, have held that it precludes foreclosure of property" }, { "docid": "18545547", "title": "", "text": "the landlord obtains relief from the automatic stay.”); Schewe v. Fair-view Estates (In re Schewe), 94 B.R. 938 (Bankr.W.D.Mich.1989) (same). Finally, much time and energy by the parties has been spent arguing whether or not this contract is executory, and if it is, whether § 365(e)(1) should apply. Because of the court’s holding on the automatic stay, which applies whether or not the contract is execu-tory, In re Pester Refining, 58 B.R. at 191, this issue has become moot. It is therefore clear, that Thomas-ville’s actions in attempting to cancel its contract with Elder-Beerman were in violation of the automatic stay. The treatment of violations of the stay has varied within the Circuits. The Bankruptcy Code does not state whether such acts are to be treated as void or voidable. Until recently each of the Circuits but one that had considered the void/voidable question had concluded that actions taken in violation of the automatic stay are void. See In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Raymark Indus., Inc. v. Lai, 973 F.2d 1125, 1132 (3d Cir.1992); N.L.R.B. v. Edward Cooper Painting, Inc., 804 F.2d 934, 940 (6th Cir.1986); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Schwartz, 954 F.2d 569, 574 (9th Cir.1992); In re Colder, 907 F.2d 953, 956 (10th Cir.1990); Borg-Wamer Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); Bronson v. U.S., 46 F.3d 1573, 1579 (Fed.Cir.1995). But see Picco v. Global Marine Drilling Co., 900 F.2d 846 (5th Cir.1990) (“[A]etions taken in violation of an automatic stay are not void.”). The Sixth Circuit, however, has recently reversed its position, holding that actions taken in violation of the automatic stay are not void, but voidable. Easley v. Pettibone Michigan Corp., 990 F.2d 905, 909-11 (6th Cir.1993). Implicit in the Sixth Circuit’s reasoning is that as void acts are incapable of cure, the power to cure past violations by annulling under § 362(d) precludes these" }, { "docid": "22332825", "title": "", "text": "with all of the other Pettibone subsidiaries. Reorganized Pettibone is a Delaware corporation with its principal place of business in Illinois. Therefore, diversity of citizenship between plaintiffs, Michigan residents, and reorganized Petti-bone existed upon the commencement of the plaintiffs’ state action and at the time of removal, January 27, 1989, which was within 30 days of the lifting of the stay. Fed.R.Crim.P. 6 (when computing any period of time, the day of the act from which the designated period of time begins to run shall not be included). Having satisfied ourselves of the District Court’s and this Court’s jurisdiction, we address the merits of this interlocutory appeal. III. There is no dispute that the July 1988 state filing violated the automatic stay provisions of 11 U.S.C. § 362(a)(1). A majority of the circuits, including this Circuit, have held that actions taken in violation of the automatic stay are void. See In re Potts, 142 F.2d 883, 888, 890 (6th Cir.1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945), but see In re Smith, 876 F.2d 524 (6th Cir.1989). See also, Raymark Industries, Inc. v. Lai, 973 F.2d 1125, 1132 (3d Cir.1992); In re Schwartz, 954 F.2d 569, 574 (9th Cir.1992); In re Calder, 907 F.2d 953, 956 (10th Cir.1990); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); 2 L. King, Collier on Bankruptcy § 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). The Fifth Circuit is alone in explicitly holding that actions taken during the pendency of the stay are voidable. Sikes v. Global Marine, 881 F.2d 176, 178 (5th Cir.1989). In our opinion, the only path that will lead us to the correct answer in the void/voidable debate must begin by defining “void” and “voidable.” As should be evident," }, { "docid": "5406992", "title": "", "text": "the subject property was not protected by the automatic stay provisions of 11 U.S.C. § 362(a). After removal of this action by the FDIC, the Miller Group moved for summary judgment asserting that B.C.R.’s cross-claim, filed on November 4, 1986, and based upon a claim of lien recorded on September 11, 1985, was not timely under N.M.StatAnn. § 48-2-10, which provides in pertinent part that: “[n]o lien ... [is binding] for a longer period than one year after the claim has been filed unless the proceedings have been commenced in a court of competent jurisdiction within that time to enforce the lien____” B.C.R. conceded that its foreclosure claim was filed outside the one-year period under section 48-2-10, but argued that the automatic stay arising from the Ruidoso bankruptcy prevented it from foreclosing on the Miller Group’s fee interest. According to B.C.R., the statutory enforcement period under section 48-2-10 was tolled pursuant to 11 U.S.C. § 108(c), which provides in relevant part: ... if applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of — ... (2) 30 days after notice of the termination or expiration of the stay under section 362____ The district court agreed with B.C.R. and denied the Miller Group’s motion. Thereafter, the district court, following a bench trial, entered its judgment in favor of McCarthy Construction, Nail Plumbing, and B.C.R. II. On appeal, neither the Miller Group nor B.C.R. disputes that when a claim to foreclose a mechanics lien falls within the scope of the automatic stay, the enforcement period governing the claim is tolled by section 108(c). See In re Hunters Run Ltd. Partnership, 875 F.2d 1425, 1426-29 (9th Cir. 1989). As briefed by the parties, the primary question presented on appeal is whether B.C.R.’s cross-claim fell within the scope of the automatic stay. The Miller Group reasserts its argument raised in" }, { "docid": "14378587", "title": "", "text": "along with all of the other Pettibone subsidiaries. Reorganized Pettibone is a Delaware corporation with its principal place of business in Illinois. Therefore, diversity of citizenship between plaintiffs, Michigan residents, and reorganized Petti-bone existed upon the commencement of the plaintiffs’ state action and at the time of removal, January 27, 1989, which was within 30 days of the lifting of the stay. Fed.R.Crim.P. 6 (when computing any period of time, the day of the act from which the designated period of time begins to run shall not be included). Having satisfied ourselves of the District Court’s and this Court’s jurisdiction, we address the merits of this interlocutory appeal. III. There is no dispute that the July 1988 state filing violated the automatic stay provisions of 11 U.S.C. § 362(a)(1). A majority of the circuits, including this Circuit, have held that actions taken in violation of the automatic stay are void. See In re Potts, 142 F.2d 883, 888, 890 (6th Cir.1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945), but see In re Smith, 876 F.2d 524 (6th Cir.1989). See also, Raymark Industries, Inc. v. Lai, 973 F.2d 1125, 1132 (3d Cir.1992); In re Schwartz, 954 F.2d 569, 574 (9th Cir.1992); In re Calder, 907 F.2d 953, 956 (10th Cir.1990); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); 2 L. King, Collier on Bankruptcy § 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). The Fifth Circuit is alone in explicitly holding that actions taken during the pendency of the stay are voidable. Sikes v. Global Marine, 881 F.2d 176, 178 (5th Cir.1989). In our opinion, the only path that will lead us to the correct answer in the void/voidable debate must begin by defining “void” and “voidable.” As should be" } ]

[ { "docid": "16636807", "title": "", "text": "still exceeds the $3,125,811,-000 valuation of TWA’s assets, we conclude that the bankruptcy court was correct in holding that TWA was insolvent as of November 4, 1991, and that the deposit of $13.7 million on that date to stay the enforcement of the judgment against TWA in favor of Travellers was a voidable preferential transfer pursuant to 11 U.S.C. § 547(b). Accordingly, we will reverse the district court’s order dated December 30,1996, which had reversed the insolvency holding of the bankruptcy court, and we will direct the district court to remand this case to the bankruptcy court for further proceedings consistent with this opinion. .11 U.S.C. § 547(b) (Í 993) states: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on accoiint of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C)such creditor received payment of such debt to the extent provided by the provisions of this title. . 11 U.S.C. § 101(32)(A) (1993) states in full: “insolvent” means— (A) with reference to an entity other than a partnership and a municipality, financial condition such that the sum of such entity's debts is greater than all of such entity’s property, at a fair valuation, .exclusive of— (i) property transferred, concealed, or removed with intent to hinder, delay, or defraud such entity’s creditors; and (ii) property that may be exempted from property of the estate under section 522 of this title[.] . This" } ]

[ { "docid": "15172419", "title": "", "text": "Sisti each owned 13.81% of DSC. . Section 548(a) of the Bankruptcy Code provides that: The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured. 11 U.S.C. § 548(a). . Although the trustee, in his brief, refers to an alleged agreement to reconvey the stock, Googel, in his videotape testimony, never specifically stated that Steinberg and Simons promised to \"re-convey” the stock. . The trustee, in his complaint, also alleges that pursuant to Bankruptcy Code § 544, he succeeds to the rights of Googel’s and Sisti’s creditors to avoid the transfer under applicable state law; that a creditor holds an allowed unsecured claim against Googel and Sisti that arose prior to the transfer; and that the transfer was fraudulent under Conn.Gen.Stat. § 52-552 (repealed), Connecticut's fraudulent conveyance statute. The trustee did not brief this claim and it is deemed abandoned. . See Mandelbaum v. Commissioner, 69 T.C.M. (CCII) 2852 (1995), aff'd, 91 F.3d 124 (3d Cir. 1996) (\"Because [the petitioners' expert’s ten] studies found that the average marketability discount for a public" }, { "docid": "6606374", "title": "", "text": "for fraudulent transfer under § 548). The $2,650,000 transfer occurred on July 28, 2005. The involuntary bankruptcy petition was filed on December 10, 2007. Therefore, the Trustee’s claim to void and recover the $2,650,000 fails under § 548 because it was not made within two years of the filing of the bankruptcy petition. 2. California Law Under California law, a transfer is constructively fraudulent if the debtor made the transfer without receiving reasonably equivalent value in exchange and the debtor did one of (1) was engaged or about to engage in a business or transaction for which the debtor’s remaining assets were unreasonably small in relation to the business or transaction; or (2) intended to incur or believed (or reasonably should have believed) that it would incur debts beyond its ability to repay; or (3) was insolvent at the time, or was rendered insolvent by the transfer or obligation. United States v. Whitman, 2:12-CV-2316-MCE-EFB, 2013 WL 3968083, at *7 (E.D.Cal. July 31, 2013) report and recommendation adopted, 2:12-CV-2316-MCE-EFB, 2013 WL 4516009 (E.D.Cal. Aug. 26, 2013). Unlike the Bankruptcy Code, the statute of limitations under California law for constructive fraudulent conveyances is four years. Cal. Civ.Code § 3439.09(a). Based on Schedule L, Balance Sheets, of IDM’s 2005 tax return, IDM’s total assets at the end of the year were $3,329,020 and the total liabilities were $2,788,937. The Trustee argues that in 2005, IDM was already experiencing financial stress. However, there is insufficient evidence to show that IDM was insolvent, its remaining assets were unreasonably small in relation to the 2.65 million dollar transfer, or the debtor intended to incur or believed (or reasonably should have believed) that it would incur debts beyond its ability to repay. Accordingly, the Court holds that the Trustee’s claim to void and recover the $2,650,000 as a fraudulent transfer under California law fails. B. $2,650,000 Distribution The Trustee seeks to recover the $2,650,000 transfer as an improper distribution under California Corporation Code section 500 (“Section 500”). The Vowells argue that the $2,650,000 transfer should not be treated as an IDM distribution because Sashi owned the property" }, { "docid": "13135342", "title": "", "text": "this requirement. 3. The redemption by LIC of Pertuit’s stock in that corporation was a transfer avoidable under section 548 of the Bankruptcy Code. Section 548(a) of the Bankruptcy Code provides: “(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debt- or, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor— “(1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer occurred or such obligation was incurred, indebted; or “(2) (A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and “(B) (i) was insolvent on the date that such transfer was made or became insolvent as a result of such transfer or obligation; “(ii) was engaged in business, or was about to engage in business or a transaction, for which any property was an unreasonably small capital; or “(iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured.” 11 U.S.C. § 548. LIC’s entitlement to relief under Section 548(a) is therefore predicated upon proof of the following: 1. The transfer of LIC’s interest in property occurred within one year of the filing of the petition or the obligation with respect to which relief is sought was incurred within one year of the filing of the petition; 2. LIC received less than a reasonably equivalent value in exchange for the transfer or obligation; and 3. LIC either (a) was insolvent on the date that the transfer was made or the debt was incurred or was rendered insolvent as a result thereof, or (b) was engaged in business, or was about to engage in business or in a transaction, for which any property remaining with LIC was an unreasonably small capital. Each of these requirements is analyzed in further detail infra. a. The" }, { "docid": "10201931", "title": "", "text": "to avoid the Modification Agreement as a fraudulent conveyance pursuant to 11 U.S.C. § 548 or alternatively as a preference pursuant to 11 U.S.C. § 547. Section 548 of the Bankruptcy Code provides, in relevant part, as follows: (a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor, voluntarily or involuntarily— (1) made such transfer or incurred such obligation with actual intent to hinder, delay or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business or a transaction or was about to engage in business or a transaction, for which any property remaining with the debtor was unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured. The trustee or debtor in possession has the burden of proving each element of a fraudulent transfer claim by a preponderance of the evidence. In re Minnesota Utility Contracting, Inc., 101 B.R. 72 (Bankr.D. Minn.1989). The debtor argues, under § 548(a)(2)(A), that the Modification Agreement may be avoided as a fraudulent conveyance. The debtor asserts that it did not receive any value from the creditor in exchange for the execution of the agreement. The debtor contends that the consideration for the Modification Agreement was the creditor’s forbearance of foreclosure on the loan between Pembroke Charter Corporation and the creditor. Therefore, the consideration if any, was received by Pembroke Charter Corporation, which was a third party to the transaction. In general, transfers made solely for" }, { "docid": "14060126", "title": "", "text": "EITHER (1) THE DEBTOR TRANSFERRED PROPERTY TO JEC WITH AN ACTUAL INTENT TO HINDER, DELAY, OR DEFRAUD CREDITORS; OR (2) THE DEBTOR TRANSFERRED PROPERTY TO JEC FOR (A) LESS THAN FAIR CONSIDERATION (B) AT A TIME WHEN IT WAS INSOLVENT OR WOULD BE LEFT WITH UNREASONABLY SMALL CAPITAL. Certain common elements must be proven by the Debtor to succeed on any of its asserted causes of action. The Trustee’s initial cause of action arises from 11 U.S.C. §§ 548(a) of the Bankruptcy Code, which provides as follows: (a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debt- or was an unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured. His second cause of action is based upon the following sections of the Pennsylvania Uniform Fraudulent Conveyance Act, 39 P.S. §§ 354-57, which provide as follows: § 354. Conveyances by insolvent Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair" }, { "docid": "10181749", "title": "", "text": "paragraph (25) is adapted from section 1(19) of current law. An entity is insolvent if its debts are greater than its assets, at a fair valuation, exclusive of property exempted or fraudulently transferred. It is the traditional bankruptcy. balance sheet test of insolvency. H.Rep. No. 95-595, 95th Cong., 1st Sess. 312 (1977), reprinted in 2 Appendix Collier on Bankruptcy 312 (15th ed. L. King 1992). . Both 11 U.S.C. § 548(a)(2)(A), (B)(i) and TUF-TA § 24.006(a) require conjunctive findings of the Debtor’s insolvency and a transfer for less than reasonably equivalent value. As the Court has determined that the Debtor was not, and did not become, insolvent as a result of the transfers, the Court need not discuss the extent of the value given for the transfer to determine that the Debtor may not avoid the transfer. . Under the Bankruptcy Code, a debtor in possession may avoid transfers in which the debtor in possession received less than reasonably equivalent value and \"was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital.” See 11 U.S.C. § 548(a)(2)(B)(ii). . § 24.005 of the Texas Uniform Transfer Act provides: (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose within a reasonable time before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: ****** (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; Tex.Bus. & Com.Code Ann., § 24.005(a)(2)(A) (Vernon 1987). . Although a debtor may not be able to meet its financial obligations as they mature, this does not necessarily mean that the debtor was insolvent in the legal sense. See Berstein v. South Central Bell Telephone Co.," }, { "docid": "5491401", "title": "", "text": "July 15, 2003. . N.Y. DCL § 273. Conveyance by insolvent: Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration. . N.Y. DCL § 274. Conveyances by persons in business: Every conveyance made without fair consideration when the person making it is engaged or is about to engage in a business or transaction for which the property remaining in his hands after the conveyance is an unreasonably small capital, is fraudulent as to creditors and as to other persons who become creditors during the continuance of such business or transaction without regard to his actual intent. . N.Y. DCL § 275. Conveyances by a person about to incur debts: Every conveyance made and every obligation incurred without fair consideration when the person making the conveyance or entering into the obligation intends or believes that he will incur debts beyond his ability to pay as they mature, is fraudulent as to both present and future creditors. . Section 548(a)(1)(B) states that a trustee can avoid a voluntary \"transfer of an interest of the debtor in property” that was made within one year before the petition date if the debtor: (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured. 11 U.S.C. § 548(a)(1)(B) (2011). . Bankruptcy Code § 550 provides that if a trustee avoids a transfer, then the trustee can recover the \"property transferred” or" }, { "docid": "2807656", "title": "", "text": "to establish his actual intent to defraud them.” (citation omitted)). In sum, transfers made to investors in furtherance of a Ponzi scheme are deemed to have been made with actual intent to hinder, delay or defraud creditors. Having concluded that Canyon was actively engaged in a Ponzi scheme, the Court finds as a matter of law that the transfers of the Debtor’s cash and gold to the Defendants were made with actual intent to hinder, delay or defraud creditors. The transfers are therefore avoidable under both § 548(a)(1)(A) of the Bankruptcy Code and Ohio Revised Code § 1336.04(A)(1). 3. The Constructive Fraudulent Transfer Claims a. The Constructive Fraud Provisions of the Bankruptcy Code and the Ohio UFTA The Trustee also asserts that the transfers of gold and cash to the Defendants are avoidable as constructive fraudulent transfers under both the Code and the UFTA. Section 548(a)(1)(B), the Bankruptcy Code’s constructive fraud provision, provides: (a)(1) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debt- or was an unreasonably small capital; or (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured. 11 U.S.C. § 548(a)(1)(B). The relevant provisions of the Ohio UFTA are nearly identical, except that they do not limit the reach-back period to one year. Ohio Revised Code § 1336.04(A)(2) provides: (A) A transfer made or an obligation incurred by a debtor is fraudulent as to a" }, { "docid": "20237911", "title": "", "text": "§§ 513.44(a)(2)(i) — (ii) and 513.45(a) ; 11 U.S.C. § 548(a)(1)(B)(n)(I)—(III). (ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; [or] (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s abilily to pay as such debts matured.... Several prominent defendants challenge the Trustee on the adequacy of his fact-pleading on this element. General Electric Capital Corporation, for instance, pointed out that the Trustee’s complaint against it tersely stated that the payments to it left the Debtors “unreasonably small capital,” and nothing else in any detail. [ADV 10-4418, Dkt. No. 1], ¶ 111. In the Alper Complaint, the recitation is that “[a]t all times material hereto, the Debtor, at the time of the Transfers, was insolvent, or in the alternative, the Debtor became insolvent as a result of the Transfers.” [ADV 10-4293, Dkt. No. 1], ¶ 71. In an abstract way, these defendants are correct; the words used to plead this element are conclusory, a bare paraphrasing of particular statutory language. Nonetheless, in rejoinder the Trustee is correct. This argument is met in two ways. The first is by recognizing the relative simplicity of one of the variants of the requirement. Under statute, “insolvent” is a defined term in both MUFTA and the Bankruptcy Code. It contemplates a straightforward meaning: the “balance sheet” conception of insolvency, debts versus assets. Minn.Stat. § 513.42(a)-(b); 11 U.S.C. § 101(32)(A). Under the governing law, this puts the essence of the Trustee’s factual contentions on insolvency right up the flagpole; there was no need to make dollar-specific averments of fact going to the status of the relevant Debtor’s balance sheet. The second is through a context-minded reading of the complaints as a whole, and the undeniable essence of the phenomenon that spawned every last one of these controversies." }, { "docid": "10516628", "title": "", "text": "the transfers of the Union Court Property and the Tunbridge Property from the Debtor to Schlossberg were fraudulent under 11 U.S.C. § 548(a)(1)(A), (a)(l)(B)(ü)(I), (a)(l)(B)(ii)(III), and (a)(l)(B)(ii)(rV). Further, he requests the return of these estate assets or, in the alternative, a judgment in his favor for the benefit of the estate equal to the value of the property transferred under' 11 U.S.C. § 550. Pursuant to the sanctions levied by the Court against Schlossberg for his intentional spoliation of electronic data from his computers, the facts alleged by the Trustee are taken as proof against him. “Section 548 of the Bankruptcy Code enables a trustee to avoid certain pre-petition transfers of property on the ground that the transfers were fraudulent.” Schechter v. 5841 Bldg. Corp. (In re Hansen), 341 B.R. 638, 642 (Bankr.N.D.Ill. 2006). “Fraudulent conveyance law protects creditors from last-minute diminutions of the pool of assets in which they have interests.” Bonded Fin. Servs., Inc. v. European Am. Bank, 838 F.2d 890, 892 (7th Cir.1988). Section 548(a)(1) of the Bankruptcy Code provides as follows: (a)(1) The trustee may avoid any transfer ... of an interest of the debt- or in property, or any obligation ... incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or (B) (i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II)was engaged in business or a transaction, or was about, to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; (III) intended to incur, or believed that the" }, { "docid": "1516427", "title": "", "text": "obligations to make repayment of the involved sums non-dischargeable. Defense is made on the ground that the defendants had not drawn salaries for a considerable period of time and that they were justified in making the withdrawals complained of to apply on the same. The funds were withdrawn and expended from October 8, 1981 to November 10, 1981 and the voluntary bankruptcy petitions of all three debtors were filed March 10, 1982, within 12 months thereof. Sections 548(a) and 544(b) of the Bankruptcy Reform Act provide in pertinent part the following: “548. Fraudulent transfers and obligations “(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred on or within one year before the date of the filing of the petition, if the debtor— (1) made such transfer or incurred such obligation with actual intent to hinder, delay or defraud any entity to which the debtor was or became, on or after the date that such transfer occurred or such obligation was incurred, indebted; or (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer of obligation; (ii) was engaged in business, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (iii) was intended to incur, or believed that the debtor would incur, debts that would be beyond the debt- or’s ability to pay as such debts matured.” “§ 544(b) Trustee.as successor to certain creditors “(b) The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debt- or that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under Section 502 of this title .... ” Section 7 of the Pa. Fraudulent Conveyance Act (1921 P.L. 1045 § 7, 39 P.S. 357) is as follows: “§ 357. Conveyance made with" }, { "docid": "6969666", "title": "", "text": "Trusts that were assessed taxes attributable to the income earned by the Debtor. (JPTO at § IV, ¶ 48.) The Debtor successfully operated from 1994 until 2008, growing its equity from $12 to $75 million. (Tr. 12/17/13 at 245-46.) On September 15, 2008, Lehman Brothers filed bankruptcy, which had a significant impact on the credit and capital markets, commercial real estate, and real estate developers. (Tr. 12/20/13 at 141; Bolin Dep. at 189-90.) With the failure of Lehman Brothers and the subsequent collapse of the financial markets, the Debtor was unable to sell its completed real estate projects because buyers could not obtain financing. The Debtor was similarly unable to obtain financing to complete projects in process. Although the Debtor considered filing a chapter 11 reorganization case, it was ultimately forced to file under chapter 7 when it could not obtain debtor-in-possession financing. (Exs. D-2067 & D-2081 at 321 & 337; Tr. 12/19/13 at 137-38; Tr. 2/4/14 at 222-33; Grindall Dep. at 181.) IV. DISCUSSION A. Insolvency The insolvency of the Debtor is a predicate to several of the Trustee’s claims against the Defendants, including piercing the corporate veil, fraudulent transfers, and preferences. The Trustee and Defendants disagree on the date the Debtor became insolvent, with the Trustee claiming it occurred as early as December, 2006, and the Defendants claiming it did not occur until the Debtor filed for bankruptcy on July 1, 2009. The Bankruptcy Code defines insolvency as the “financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation.” 11 U.S.C. § 101(32). This standard is commonly called the balance sheet test. Determining whether a company is insolvent under the balance sheet test is a mixed question of fact and law. In re Trans World Airlines, Inc., 134 F.3d 188, 193 (3d Cir.1998). The Trustee also contends that the Debtor was insolvent as early as December, 2006, based on two alternative tests under the fraudulent conveyance provisions of the Bankruptcy Code and Delaware law. Under the Bankruptcy Code, certain transfers may be avoided as fraudulent transfers" }, { "docid": "21511581", "title": "", "text": "273 to 275 of New York’s Debtor and Creditor Law. The Ninth and Twenty-First Claims for Relief asserts claims against H.I.L. and Tereza for avoidance and recovery of the H.I.L One Year Transfers and the Teresa One Year Transfers based upon constructive fraud under Section 548(a)(1)(B) of the Bankruptcy Code. New York Debtor and Creditor Law Sections 273, 27b, and 275 New York’s Debtor and Creditor Law provides that a conveyance by a debt- or is deemed constructively fraudulent if it is made without “fair consideration” and any of the following conditions is met: (1) the transferor is insolvent or will be rendered insolvent by the transfer in question (DCL Section 273), (2) the transferor is engaged or is about to engage in a business or transaction for which its remaining property constitutes unreasonably small capital (DCL Section 274), or (3) the transferor believes that it will incur debt beyond its ability to pay (DCL Section 275). See In re Sharp Int’l Corp., 403 F.3d at 53. Bankruptcy Code Section 5b8(a)(1)(B) Section 548(a)(1)(B) provides: (a)(1) The Trustee may avoid any transfer ... of an interest of the debt- or in property, ... incurred by the debtor that was made or incurred on or within [one] year[ ] before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or a transaction, or was about to en gage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured;.... 11 U.S.C. § 548(a)(1)(B). The Tereza Defendants argue that the Trustee’s constructive fraud claims must be dismissed for lack of specificity. Tere-za Defendants’ Mem. at 48-51. They" }, { "docid": "7701333", "title": "", "text": "not set forth their testimony in this portion of the opinion, it will instead consider their views in making its conclusions of law. II. DISCUSSION The Liquidating Trustee seeks relief under 11 U.S.C. §§ 548(a)(1)(B) and 550(a). Section 548(a)(1) of the Bankruptcy Code recognizes the power of a bankruptcy trustee to challenge transfers or obligations incurred by the debtor as fraudulent. Section 548(a)(1) provides: The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (A) made such transfer ... with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on of after the date that such transfer was made or such obligated was incurred, indebted; or (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured. 11 U.S.C. § 548(a). Section 548(a) grants the trustee the power to avoid fraudulent transfers accomplished with either actual or constructive fraudulent intent. Section 548(a)(1)(A) provides that a trustee may avoid transfers that were actually fraudulent, while section 548(a)(1)(B) provides that a trustee may avoid transfers that were constructively fraudulent. To the ex tent a transfer is voided as fraudulent, section 550(a) then allows the trustee to recover the property transferred or the value of such property from the initial transferee or any immediate of mediate transferee of the initial transferee. See 11 U.S.C. § 550(a). To recover a transfer as constructively fraudulent" }, { "docid": "10181748", "title": "", "text": "or incurred on or within one year before the date of the of the filing of the petition, if the debtor voluntarily or involuntarily- (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; . § 24.006(a) of the Texas Uniform Fraudulent Transfer Act provides: (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation. Tex.Bus. & Com.Code Ann., § 24.006(a) (Vernon 1987). .The legislative history to the Bankruptcy Code definition of \"insolvent” provides: The definition of \"insolvent” in paragraph (25) is adapted from section 1(19) of current law. An entity is insolvent if its debts are greater than its assets, at a fair valuation, exclusive of property exempted or fraudulently transferred. It is the traditional bankruptcy. balance sheet test of insolvency. H.Rep. No. 95-595, 95th Cong., 1st Sess. 312 (1977), reprinted in 2 Appendix Collier on Bankruptcy 312 (15th ed. L. King 1992). . Both 11 U.S.C. § 548(a)(2)(A), (B)(i) and TUF-TA § 24.006(a) require conjunctive findings of the Debtor’s insolvency and a transfer for less than reasonably equivalent value. As the Court has determined that the Debtor was not, and did not become, insolvent as a result of the transfers, the Court need not discuss the extent of the value given for the transfer to determine that the Debtor may not avoid the transfer. . Under the Bankruptcy Code, a debtor in possession may avoid transfers in which the debtor in possession received less than reasonably equivalent value and \"was engaged in business or a transaction, or was about to engage in" }, { "docid": "15830382", "title": "", "text": "that Doctors Hospital was Insolvent as of August 28,1997 As noted, Defendant argues that the bankruptcy court improperly applied hindsight bias in concluding that, as of August 28, 1997, Doctors Hospital was insolvent, inadequately capitalized, and unable to pay its debts as they came due. Defendant attacks Judge Schmetterer’s analysis for its reliance on expert valuation testimony to the exclusion of contemporaneous market data and other facts that, Defendant contends, better reflected Doctors Hospital’s financial condition. The expert opinions adopted by the bankruptcy court, Defendant asserts, themselves indulged in improper hindsight bias resulting in a conclusion of insolvency as of August 28, 1997, when in fact, according to Defendant, Doctors Hospital was solvent on that date by more than $7 million. (See Def.’s Br. at 29.) The Bankruptcy Code and the Illinois Uniform Fraudulent Transfer Act (“IUFTA”) both define “insolvent” as the condition in which the sum of an entity’s debts is greater than all the entity’s assets at a fair valuation. See 11 U.S.C. § 101(32); 740 ILCS 160/3. Generally, a fair valuation is the price a willing buyer would pay a willing seller, assuming reasonable knowledge of the facts on both sides. Initial Findings, 360 B.R. at 853 (citing In re Ebbler Furniture and Appliances, Inc., 804 F.2d 87, 92-93 (7th Cir.1986); In re Hoffinger Industries, Inc., 313 B.R. 812, 817 (Bankr.E.D.Ark.2004); In re WRT Energy Corp., 282 B.R. 343, 369 (Bankr.W.D.La.2001)). If that value is positive, the entity was solvent on the date in question; if the value was negative, it was insolvent. See Initial Findings, 360 B.R. at 858. Under the Bankruptcy Code and IUFTA, in order to recover a purported fraudulent transfer, a trustee must show by a preponderance of the evidence that the entity (i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (in)" }, { "docid": "12551319", "title": "", "text": "e.g., L. Verner, Transfers in Fraud of Creditors Under the Uniform Acts and the Bankruptcy Code, 92 COMMERCIAL L.J. 219 (1985). Legislative attempts to rectify such actions include the provisions set forth at 11 U.S.C. § 548 of the Bankruptcy Code and the Uniform Fraudulent Conveyances Act, which has been adopted by several states, including Pennsylvania, at 39 P.S. §§ 351 et seq. (“the UFCA”). Both of these statutory provisions provide remedies for both actual and constructive fraudulent conveyances. In the instant matter, U & L seeks to avoid transfers made by the Debtor to the Goodways under both actual fraud and constructive fraud theories. U & L relies upon the following provisions of the Code and the UFCA in making these claims: 11 U.S.C. § 548 (a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (1) made such transfer or incurred such obligation with actual intent to hinder, delay or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured. UFCA, 39 P.S. § 354. Conveyances by insolvent. Every conveyance and every obligation incurred by a person who is or will thereby without regard to his actual intent, if the conveyance is made or the obligation is incurred without fair consideration. § 355. Conveyances" }, { "docid": "6347517", "title": "", "text": "the Defendants -under Count I of the complaint. Each Defendant is ordered to turn over the sum of $29,850.00 to the Trustee, plus prejudgment interest of $1,695.04 from December 22, 2000 through January 7, 2002. B. Counts II and III of the Complaint Next, in Count II of the complaint, the Trustee contends that the transfers by the Debtor to the Defendants were made with actual intent to hinder, delay or defraud the Debtor’s creditors and constitute fraudulent conveyances. In Count III of the complaint, the Trustee alleges that the transfers were fraudulent because the Debtor received less than reasonably equivalent value in exchange for the transfers; he was insolvent on the date of the transfers or became insolvent as a result of the transfers; he was engaged in business or a transaction for which property remaining with him was unreasonably small capital; or the Debtor intended to incur, or believed that he would incur, debts that would be beyond his ability to pay as such debts matured. Counts II and III of the Trustee’s complaint are brought under 11 U.S.C. § 548(a)(1), which provides in relevant part: (a)(1) The trustee may avoid any transfer of an interest of the debtor in property, ... that was made ... on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (A) made such transfer ... with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made, ... indebted; or (B)(i) received less than a reasonably equivalent value in exchange for such transfer ...; and (ii)(I) was insolvent on the date that such transfer was made ..., or became insolvent as a result of such transfer (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debt- or was an unreasonably small capital; or (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s" }, { "docid": "3776652", "title": "", "text": "The Trustee's state law rights are accessed via 11 U.S.C. § 544(b). . Bankruptcy Code § 548(a)(1) provides, in pertinent part: The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debt- or's ability to pay as such debts matured. 11 U.S.C. § 548(a)(1)(B). DCL § 273 provides: Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration. N.Y. Debt. & Cred. § 273. DCL § 274 provides: Conveyances by persons in business: Every conveyance made without fair consideration when the person making it is engaged or is about to engage in a business or transaction for which the property remaining in his hands after the conveyance is an unreasonably small capital, is fraudulent as to creditors and as to other persons who become creditors during the continuance of such business or transaction without regard to his actual intent. N.Y. Debt. & Cred. § 274. DCL § 275 provides: Conveyances by a person about to incur debts: Every conveyance made and every obligation incurred without fair consideration when the person making the conveyance or entering into the obligation intends or believes that he will incur debts beyond his ability" }, { "docid": "6969667", "title": "", "text": "to several of the Trustee’s claims against the Defendants, including piercing the corporate veil, fraudulent transfers, and preferences. The Trustee and Defendants disagree on the date the Debtor became insolvent, with the Trustee claiming it occurred as early as December, 2006, and the Defendants claiming it did not occur until the Debtor filed for bankruptcy on July 1, 2009. The Bankruptcy Code defines insolvency as the “financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation.” 11 U.S.C. § 101(32). This standard is commonly called the balance sheet test. Determining whether a company is insolvent under the balance sheet test is a mixed question of fact and law. In re Trans World Airlines, Inc., 134 F.3d 188, 193 (3d Cir.1998). The Trustee also contends that the Debtor was insolvent as early as December, 2006, based on two alternative tests under the fraudulent conveyance provisions of the Bankruptcy Code and Delaware law. Under the Bankruptcy Code, certain transfers may be avoided as fraudulent transfers if the debtor: (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; [or] (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured.... 11 U.S.C. § 548(a)(l)(B)(ii)(I-III). Delaware has a similar provision. See Del. Code Ann. tit. 6, § 1304(a)(2) (providing that certain transfers may be avoided if the Debtor “a. was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or b. intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.”); DeLCode" } ]

[ { "docid": "6862688", "title": "", "text": "under the third count. The contention cannot be sustained. By virtue of the statutory presumption, proof of the defendant’s possession of the drug, unless explained, warrants a conviction. 21 USCA § 174; Yee Hem v. United States, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904; Charley Toy v. United States, 266 F. 326 (C. C. A. 2) ; Hooper v. United Slates, 16 F.(2d) 868 (C. C. A. 9). Proof of Mule’s possession of the heroin before he sold it to Moyer was made by Moyer’s testimony that he bought from Mule, and by the testimony of the arresting agents that Mule admitted having had five ounces and having sold the last ounce to Moyer. Mule took the stand and denied everything. Where the truth lay was a question for the jury. Complaint is also made that the conviction rests solely upon the uncorroborated testimony of a discredited accomplice; but neither in fact nor in law is this objection sound. The testimony of the agents as to1 Mule’s admissions, if credited, supplied corroboration to Moyer. Nor is it the law in the federal courts that the uncorroborated testimony of an accomplice will never suffice to convict a defendant. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Rachmil v. United States, 288 F. 782, 785 (C. C. A. 2); Hass v. United States, 31 F.(2d) 13 (C. C. A. 9). Such testimony is naturally subject to suspicion, and, as the above authorities indicate, the trial court may well caution the jury to weigh it carefully. In the ease at bar this was done. No exceptions wore taken to the charge as given and no request was made to amplify it; hut it is now urged that the charge was insufficient to safeguard the defendant’s rights in this respect. It will suffice to say that in our opinion the caution to the jury was entirely adequate. The next point is the court’s refusal to strike out all testimony and exhibits" } ]

[ { "docid": "23393004", "title": "", "text": "too much reliance upon the testimony of accomplices, and against believing such testimony without corroboration, mere failure to give such instruction is not reversible error. Caminetti v. United States, 242 U. S. at page 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168; Ray v. United States (C. C. A. 6) 265 Fed. 257; Rudner v. United States (C. C. A. 6) 281 Fed. 516, 521. Reference to the instruction actually given the jury, as quoted in the margin hereof, shows that the court did not fail in its duty in the respect stated. Complaint is also made of a refusal of another instruction requested at the close of the charge actually given, viz. that— “The evidence of the defendant also shows that the prosecuting witness at one time was jealous of the defendant, and sought his life, and the jury should consider that evidence as to whether or not it was a motive actuating the testimony of Mr. and Mrs. Tyree Taylor.” The court had already instructed the jury that— “In weighing the testimony of the witnesses, you will look further to see what motive, if any, actuated the witness in testifying as he did; if you find that the witness has a motive for testifying against a party, then, as a matter of course, you would take that into consideration in weighing the testimony of such witness, if you find that any motive existed for so testifying; that is, any ulterior motive for so testifying against the party. * * * ” Having given this general instruction, it was not reversible error to decline to call the jury’s attention specifically to a given item of testimony whose tendency was claimed to show motive. In the charge the judge, after stating that the jurors were not to be influenced by anything that he might sáy to them- in recounting the testimony, or by any opinion which they think he might have or which he might express about the case, because these matters must be determined by the jurors, uninfluenced by" }, { "docid": "13463318", "title": "", "text": "from other sources, the defendant should have been permitted to do so. Scott v. United States, 172 U. S. 343, 19 Sup. Ct. 209, 43 L. Ed. 471; Dodge v. State, 122 Ala. 97, 26 South. 200, 82 Am. St. Rep. 23, and note, pp. 25 to 41; Turnpike Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311, note, p. 321. Sixth. Assignments 9 and 10 relate to the admission of testimony over defendant’s objection, of an alleged offer of compromise, made by Ihe defendant Woods, for a separate and distinct offense under the Harrison Anti-Narcotic Drug Act, not of the kind covered o- included here, but for the failure, for some time prior to the time o: the commission of the alleged offense, to keep proper records of his transactions as a dentist in handling opiates. What was done respectirg this offer of compromise, the record does not show. We think it related too remotely to the offense here charged to be admitted as an evidence of guilt. We can but feel that this evidence tended to prejud ce the defendant, and should not have been brought into the case. Seventh. Assignment 20 relates to exceptions to the charge of the district judge to the effect that there was greater probability of the truth of the testimony of two accomplices than of one. We are not prepared to controvert this proposition of law announced by the trial court. In the case of Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168, it was held that a conviction may be had upon the testimony of a;complices, if the jury believe them. Wallace v. United States, 243 Fed. 300, 156 C. C. A. 80 (certiorari denied, 245 U. S. 650. 38 Sup. Ct. 11, 62 L. Ed. 531); Hollis v. United States, 246 Fed. 832, 159 C. C. A. 134; Graboyes v. United States, 250 Fed. 793, 163 C. C. A. 125. The charge of the court complained of states the law" }, { "docid": "23431010", "title": "", "text": "* the cheek being bad, the seller could have sued the purchaser for the price. So that the fact that the check turned out to be a worthless check, if that be a fact, does not make the transaction in question necessarily no sale.” Apart from this extrajudicial statement of plaintiff in error, there was no testimony indicating that the check was bad. The jury was not bound to find from the evidence that the purchaser did not intend to make the check good. Upon the argument here it was, however, said by counsel for plaintiff in error that during the night the whisky disappeared from the house in which delivery had at an earlier hour been made. The implication seems to be that the purchase was a mere pretense—in aid of a theft. This is at best mere surmise. It is fully as open to inference that the whisky was placed temporarily only in the building in Cincinnati, which belonged to a relative of one of the gobetweens—there being testimony that plaintiff in error said that “his permit would not allow its delivery in Kentucky.” If the whisky was to be moved, the night would seem a not unnatural time therefor. We may add that the objection that the guilt of plaintiff in error was not shown beyond a reasonable doubt is answered by the fact that, even were the point properly raised, it would be enough that there was substantial and competent evidence tending to sustain the conviction. Burton v. United States, 202 U. S. 344, 373, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6) 258 Fed. 392, 406, 169 C. C. A. 408, and cases cited. The fact that the conviction rested largely, or even entirely, upon the testimony of accomplices, is not enough to invalidate. Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U. S. 509, 30 Sup. Ct. 588, 54" }, { "docid": "23553669", "title": "", "text": "imprisonment of five years on each count and a fine of $500 on each, the terms of imprisonment each to run concurrently with the sentence on counts 1, 2, 5 and 7. , It is argued there was still duplication of offenses in the counts on which sentences were imposed, but the proof when applied to the terms of the statute convinces that the court did not err in treating the counts in the manner stated, as charging separate offenses. Nor can we accept as sound the contention that the indictment is bad in that it does not charge the several thefts from railway cars with the particularity required in charging larceny. Abraham v. United States (C. C. A.) 15 F.(2d) 911; Jones v. United States (C. C. A.) 19 F.(2d) 316; Brooks v. United States, 267 U. S. 432, 45 S. Gt. 345, 69 L. Ed. 699, 37 A. L. R. 1407; Bloch v. United States (C. C. A.) 261 F. 321; Heglin v. United States (C. C. A.) 27 F. (2d) 310; Isbell v. United States (C. C. A.) 26 F.(2d) 24. The law was clearly and fully stated by the court in its charge to the jury. Reasonable doubt was properly defined and the court did not err in refusing to give defendant’s request on that subject, nor in refusing to instruct that a defendant cannot be convicted on the testimony of an accomplice unless corroborated by at least one witness or by incriminating circumstances. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Wishart v. United States (C. C. A.) 29 F.(2d) 103,105. However, the court did charge that it was the duty of the jury to examine such testimony with caution and scrutinize it carefully before placing reliance upon it. Error is also assigned that the court permitted, over defendant’s objection, proof of other offenses of like kind, — that is, defendant recently prior to the commission of the offenses charged had purchased from Helvy and Webster other" }, { "docid": "9464988", "title": "", "text": "upon the testimony of these accomplices, and to require corroborating testimony before giving it credence, the federal courts recognize no rule of law forbidding convictions on the testimony of accomplices alone, if helieved by the jury. Holmgren v. United States, 217 U. S. 509 523, 524, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Ray v. United States (C. C. A. 6) 265 Fed. 257, 258. 6. ‘Dotson testified, on cross-examination, in answer to questions evidently intended to discredit him, that he was then an inmate of a prison upon conviction of larceny. On redirect examination he was allowed to explain his conviction and to assert his innocence of guilt. There was no error in this, nor in allowing him to state in that connection that he was “innocently implicated” in the offense charged here, in 'that he was driving the car for Wagman under instructions from his own employer, and that he “did not get any pay for it.” 7. The Reed Amendment excepts from its prohibition liquors intended for “scientific, sacramental, medicinal and mechanical purposes.” The indictment in terms negatived the exception. There was no express proof in support of the negative. The charge did not mention the exception, and made defendant’s guilt or innocence turn upon whether he caused the whisky to be brought from Ohio into Michigan, in the two certain automobiles which had been made the subject of testimony. This action did not involve reversible error. As the record stands, it is unnecessary to determine whether the government had the burden of proving this negative. Defendant neither moved for directed verdict, nor did he request an instruction upon the subject of the excepted uses, nor was there any exception taken to the charge on this subject. The “general exception to the whole charge of the court” was ineffective. Anthony v. Louisville R. R. Co., 132 U. S. 172, 10 Sup. Ct. 53, 33 L. Ed." }, { "docid": "13422193", "title": "", "text": "to be impeached, in the neighborhood in which he resides; and if the jury believe, from the evidence in- this case, that the reputation for truth and veracity of any party or witness who has testified before you, in the ’ neighborhood where he resides is bad, then the jury have a -right to disregard the whole of such person’s testimony and treat it,as untrue, except so far as it is corroborated by other credible evidence, or by facts and circumstances proved on the trial.” The first instruction requested was Entirely too broad, which is sufficient ground for its refusal. The second request was covered to some extent in the charge of the court, as follows: “There has been evidence here of statements made by various witnesses that contradicted, or are alleged do have contradicted; those given by them on the witness stand. There is also evidence of character by various parties. You may consider that evidence, of course, along with the other evidence in the ease, in making up your verdict.” As to offered instruction No. 1, we may say it was evidently on the theory that West was an accomplice, and that the jury should have been instructed on this, question. There is no rule of .law in the federal court preventing conviction on the testimony of an accomplice. Holmgren v. United States, 217 U. S. 509, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; United States v. Murphy et al. (D. C.) 253 F. 404; Ray v. United States (C. C. A.). 265 F. 257; Wagman v. United States (C. C. A.) 269 F. 568. In Holmgren v. United States, supra, the Supreme Court said it was the .better practice for courts to caution juries against too much reliance upon the testimxoiy of accomplices, and that .before credence was given to such evidence there should be corroborating testimony. This suggestion is a wise one for courts to fallow." }, { "docid": "19094709", "title": "", "text": "States, Perez v. United States, and Egan v. United States, supra; Albert v. United States (C.C.A. 6) 281 F. 511. V/e think the instruction asked was a proper one under the circumstances of this case. Ordinarily the requirement that the jury should be convinced beyond a reasonable doubt that the testimony of an accomplice is true would be objectionable, and would warrant refusal; but in the instant case proof of the sale depended entirely upon the testimony of Josephine West, and unless the jury believed that testimony beyond a reasonable doubt they could not properly return a verdict of conviction.” However, the Government contends that other Federal cases hold that, while desirable, an instruction on accomplice testimony need not be given, even though requested. Particular reliance is placed on two cases decided by the Court of Appeals for the Second Circuit. United States v. Becker, 62 F2d 1007 (1933); United States v. Block, 88 F2d 618 (1937), cert den 301 US 690, 81 L ed 1347, 57 S Ct 793; and United States v. Pine, 135 F2d 353 (CA5th Cir 1943), cert den 320 US 740, 88 L ed 439, 64 S Ct 40. In the Block case the court said (page 621) : “The only other question raised on Block’s appeal is the failure of the judge to tell the jury that they should look jealously at the testimony of Rubin, as an accomplice. It is common practice so to caution a jury, but it is not necessary even when as here the accused asks that it be done. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168; Rachmil v. United States, 288 F. 782, 785 (C.C.A. 2); Wallace v. United States, 243 F. 300, 307 (C.C.A. 7); United States v. Becker (C.C.A.) 62 F. (2d) 1007, 1009.” Appellate defense counsel ably argue that the cases cited by the Government are distinguishable from those relied upon by them. Thus, in United States v. Block, supra, the court specifically noted that the record contained “so" }, { "docid": "9464987", "title": "", "text": "here charged, and open to inference that they were the outgrowth of a continuing clandestine liquor traffic, were competent evidence, at least by way of showing the intent of defendant’s taxicab trip to Detroit, including knowledge or ignorance of the fact that his own car, laden with whisky, was following him. Being thus competent, it was not made incompetent because of a tendency to show guilt of another offense. Tucker v. United States (C. C. A. 6) 224 Fed. 833, 840, 140 C. C. A. 279. 5. Plaintiff in error urges that his conviction was had largely upon the testimony of Dotson and Gill, and complains that the trial court did not, upon its own motion, instruct the jury that the testimony of these witnesses should be carefully scrutinized, and believed only when corroborated by other testimony in the case. The failure to so instruct would not be reversible error, even had it been excepted to, as it was not. While it would have been better practice to caution the jury against relying too greatly upon the testimony of these accomplices, and to require corroborating testimony before giving it credence, the federal courts recognize no rule of law forbidding convictions on the testimony of accomplices alone, if helieved by the jury. Holmgren v. United States, 217 U. S. 509 523, 524, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Ray v. United States (C. C. A. 6) 265 Fed. 257, 258. 6. ‘Dotson testified, on cross-examination, in answer to questions evidently intended to discredit him, that he was then an inmate of a prison upon conviction of larceny. On redirect examination he was allowed to explain his conviction and to assert his innocence of guilt. There was no error in this, nor in allowing him to state in that connection that he was “innocently implicated” in the offense charged here, in 'that he was driving the car for Wagman under" }, { "docid": "23393003", "title": "", "text": "that he had never been convicted of anything, admitting, however, that he had been arrested during the preceding two years for vagrancy. Without deciding whether or not this evidence should have been received against due objection, we think defendant not in position to complain of it. No ground of objection was stated, and in the absence of such statement defendant is not entitled of right to complain. Robinson v. Van Hooser (C. C. A. 6) 196 Fed. 620, 624, 116 C. C. A. 294. The testimony is not so clearly improper or prejudicial as to justify waiving the rule. Following the charge of the court defendant’s counsel asked an instruction that— “The jury should scrutinize the. testimony of accomplices carefully, and they should not believe the testimony of accomplices, and should not convict on the testimony of accomplices, unless it is supported by independent proof.” There was no error in refusing to so instruct. The rule is well settled that while it is the better practice in penal cases for courts to caution jurors against too much reliance upon the testimony of accomplices, and against believing such testimony without corroboration, mere failure to give such instruction is not reversible error. Caminetti v. United States, 242 U. S. at page 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168; Ray v. United States (C. C. A. 6) 265 Fed. 257; Rudner v. United States (C. C. A. 6) 281 Fed. 516, 521. Reference to the instruction actually given the jury, as quoted in the margin hereof, shows that the court did not fail in its duty in the respect stated. Complaint is also made of a refusal of another instruction requested at the close of the charge actually given, viz. that— “The evidence of the defendant also shows that the prosecuting witness at one time was jealous of the defendant, and sought his life, and the jury should consider that evidence as to whether or not it was a motive actuating the testimony of Mr. and Mrs. Tyree Taylor.” The court had" }, { "docid": "13463319", "title": "", "text": "that this evidence tended to prejud ce the defendant, and should not have been brought into the case. Seventh. Assignment 20 relates to exceptions to the charge of the district judge to the effect that there was greater probability of the truth of the testimony of two accomplices than of one. We are not prepared to controvert this proposition of law announced by the trial court. In the case of Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168, it was held that a conviction may be had upon the testimony of a;complices, if the jury believe them. Wallace v. United States, 243 Fed. 300, 156 C. C. A. 80 (certiorari denied, 245 U. S. 650. 38 Sup. Ct. 11, 62 L. Ed. 531); Hollis v. United States, 246 Fed. 832, 159 C. C. A. 134; Graboyes v. United States, 250 Fed. 793, 163 C. C. A. 125. The charge of the court complained of states the law with accuracy and clearness, and quite as favorably to the defendant as he coidd reasonably have asked, and there was no error therein. For the reasons stated, the judgment of the lower court will be reversed, and this case remanded to said court, with directions to award a new trial. Reversed." }, { "docid": "4483269", "title": "", "text": "were for beverage purposes. There was also testimony tending to show that the respective plaintiffs in error, in connection with their purchase, removed or Caused the removal of the purchased liquor from Wilson’s premises by automobile or truck, and with his knowledge and connivance transported the same thereby to another location. We think such agreements and relations between Wilson, the seller, and the respective plaintiffs in, error, as buyers, including testimony of the acts above set forth in connection with the sale, are competent and substantial evidence of a conspiracy between such buyer and seller to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), by the unlawful transportation of intoxicating liquor for beverage purposes, and of the fact of such transportation as participated in by both Wilson and the respective plaintiffs in error. It was unnecessary, under such circumstances, that the chemical examination of the redeemed liquor be shown. Albert v. United States (C. C. A. 6) 281 F. 511, 513. There was thus substantial testimony which, if believed, tended to sustain the conclusion of guilt of each plaintiff in error under the conspiracy charge we are considering. The credibility of the testimony was for the jury. It cannot be weighed by this court. Burton v. United States, 202 U. S. 343, 373, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6), 258 F. 392, 406, 169 C. C. A. 408. Nor is it fatal to the convictions that they rest largely, if not entirely, upon the testimony of accomplices. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U. S. 509, 30 S. Ct. 588, 54 L. Ed. 861; 19 Ann. Cas. 778. In each case the jury was sufficiently cautioned as to the weight to be given the testimony of an accomplice. Caminetti v. United States, supra, at page 495; Ray v. United States (C. C. A. 6), 265 F." }, { "docid": "22468081", "title": "", "text": "occasional decision where the appellate court weighed the evidence and reviewed the decision of the jury, upon a disputed issue of fact, for such is not the rule in this jurisdiction. The right of an accused to a trial by jury upon all issues of fact is guaranteed by the Fifth Amendment to the Constitution. But the accused cannot have both a trial by a jury, and a retrial by an appellate court. If the evidence be conflicting, then the issue is one for the jury, and no asserted distinction between “evidence” and “substantial evidence” can afford a basis for a modification of this rule. On a motion for a new trial, the District Judge may set aside the verdict and grant a trial, notwithstanding the evidence is conflicting. But his action in so doing or refusing to do so is not subject to review by this court. Another rule which can not be ignored in eases of this kind where the appellate court is asked to review the testimony to ascertain whether any evidence may be found to support the verdict, relates to the testimony of accomplices. However bitterly such testimony may be assailed before the jury, the fact remains that it alone may support a verdict. Caminetti v. United States, 242 U. S. 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; United States v. Heitler (D. C.) 274 F. 401. Upon appeal its weight or credibility is not involved. Whether they, or any of them, were moved by revenge or any other unworthy motive, whether they told the truth in part or in whole, was for the jury to determine. Evidently their testimony was believed, and, if accepted, a condition was disclosed as shocking as may be found in the annals of municipal government. They described a situation where, from police to mayor, from bailiff to the court, corruption was rampant, vice was protected, bribery was common, and justice was a mockery. Moneys wore collected from the dens of vice to secure the election of officials who wore" }, { "docid": "23431011", "title": "", "text": "said that “his permit would not allow its delivery in Kentucky.” If the whisky was to be moved, the night would seem a not unnatural time therefor. We may add that the objection that the guilt of plaintiff in error was not shown beyond a reasonable doubt is answered by the fact that, even were the point properly raised, it would be enough that there was substantial and competent evidence tending to sustain the conviction. Burton v. United States, 202 U. S. 344, 373, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6) 258 Fed. 392, 406, 169 C. C. A. 408, and cases cited. The fact that the conviction rested largely, or even entirely, upon the testimony of accomplices, is not enough to invalidate. Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U. S. 509, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778. The jury was cautioned to regard the testimony of accomplices “with care, with circumspection and caution.” This was enough. Ray v. United States (C. C. A. 6) 265 Fed. 257. Finding no error in the record, the judgment of the District Court is affirmed. All italics in this opinion are ours, unless otherwise stated. In Remington’s Practice of Pharmacy, whisky is said to contain 44 to 45 per cent, by volume of absolute alcohol, and 37 to 47.5 per cent, by weight; and see the definition of whisky quoted in Singer v. United States (C. C. A. 3) 278 Fed. at page 418, as given in the United States Pharmacopoeia. Crawford v. United States, 212 U. S. 183, 194, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392." }, { "docid": "23321641", "title": "", "text": "be unsafe to convict on the uncorroborated evidence of an accomplice, which was all that could be asked. Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U. S. 509, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Ray v. United States (C. C. A. 6) 265 Fed. 257. We may add that we see no basis for complaint on the charge of variance, having in mind that the prosecution was for conspiracy, 'not for a series of disconnected offenses, as was the theory of defendants. We find nothing in the proceedings of which we think the plaintiffs in error (unless it be George Nauman) are entitled to complain. 6. The question remains whether verdict should have been directed in favor of George Nauman. There was no testimony that he personally participated in either of the sales to Ben Rudner made at the Nauman garage, in all of which, according to the testimony, Charles Nauman acted, and the jury was instructed that mere knowledge on his part of the existence of the conspiracy, or a passive acquiescence therein or a failure to denounce it, would not justify his conviction. It does not affirmatively appear that his relations to the Nauman garage were other than as employe of Charles. There was, however, testimony of one witness, interpreted by the trial court to mean that upon one occasion, when boxes were being broken open in the garage and whisky taken out and loaded into two cars, and money paid over and cars driven out past the office, George Nauman, who was working generally in the garage, drank beer in the office with the witness; and that on another occasion, when George Nauman passed into the open space of the garage, where boxes were being ripped open with whisky in them, somebody declared (pointing to George Nauman), “There is the boss’ brother.” It is the opinion of a majority of this court that there was no competent" }, { "docid": "19094708", "title": "", "text": "the language of the charge given. . . . “Not only was the witness Josephine West herself guilty of an offense, amounting to felony, against this same statute, but by her act of purchase she aided, assisted, and encouraged plaintiff in error in the commission of a crime; she was therefore an accomplice within the definition of that term. Ordinarily the failure of a court to charge that the testimony of an accomplice should be received with great caution is not assignable as error, in the absence of a request to so charge. Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L.R.A. 1917F 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U.S. 509, 524, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Perez v. United States (C.C.A. 9) 10 F. (2d) 352. “But it is the better practice so to instruct in any event, and a refusal to do so, when requested, is error. Caminetti v. United States, Holmgren v. United States, Perez v. United States, and Egan v. United States, supra; Albert v. United States (C.C.A. 6) 281 F. 511. V/e think the instruction asked was a proper one under the circumstances of this case. Ordinarily the requirement that the jury should be convinced beyond a reasonable doubt that the testimony of an accomplice is true would be objectionable, and would warrant refusal; but in the instant case proof of the sale depended entirely upon the testimony of Josephine West, and unless the jury believed that testimony beyond a reasonable doubt they could not properly return a verdict of conviction.” However, the Government contends that other Federal cases hold that, while desirable, an instruction on accomplice testimony need not be given, even though requested. Particular reliance is placed on two cases decided by the Court of Appeals for the Second Circuit. United States v. Becker, 62 F2d 1007 (1933); United States v. Block, 88 F2d 618 (1937), cert den 301 US 690, 81 L ed 1347, 57 S Ct 793; and United States v. Pine," }, { "docid": "16073255", "title": "", "text": "question of intent, and the court in its instructions carefully pointed out to the jury that it could be considered only for that purpose. [•8] An acquittal on the conspiracy count does not prevent prosecution or conviction on the other seven counts, each of which charges a substantive offense. Bell v. United States (C. C. A.) 2 F.(2d) 543. This brings us to the important question of whether the evidence was sufficient to establish the guilt of appellants on the first seven counts. This question as to Tinsley is really not before us, as no motion was made as to him. Edwards v. United States (C. C. A.) 7 F.(2d) 357; Anderson v. United States (C. C. A.) 264 F. 75. . We can well understand from a study of this record that none would have the temerity to suggest that the evidence as to Tinsley’s guilt of the offenses charged in the first seven counts was not overwhelming. Some suggestion is made that the evidence was that of accomplices and was not corroborated. However, conviction may be based on the testimony of accomplices alone if the jury believes it to be true. Waldeck et al. v. United States (C. C. A.) 2 F.(2d) 243; Webb et al. v. United States (C. C. A.) 8 F.(2d) 145; Heglin v. United States (C. C. A.) 27 F.(2d) 310; Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168. He was found in recent possession of much stolen property. Two Indians testify they stole at his direction. He had been warned by a government farmer in 1927 that Widow and Lone Eagle were stealing horses and that he should inspect the horses he bought. He did not do so, but kept on in his iniquitous work. The testimony shows that hides from these stolen horses had the brands cut out or were slashed and mutilated. When Tinsley was arrested after the discovery of his operations, he failed to'appear in the preliminary criminal prosecution and forfeited his bond." }, { "docid": "4483270", "title": "", "text": "to sustain the conclusion of guilt of each plaintiff in error under the conspiracy charge we are considering. The credibility of the testimony was for the jury. It cannot be weighed by this court. Burton v. United States, 202 U. S. 343, 373, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6), 258 F. 392, 406, 169 C. C. A. 408. Nor is it fatal to the convictions that they rest largely, if not entirely, upon the testimony of accomplices. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U. S. 509, 30 S. Ct. 588, 54 L. Ed. 861; 19 Ann. Cas. 778. In each case the jury was sufficiently cautioned as to the weight to be given the testimony of an accomplice. Caminetti v. United States, supra, at page 495; Ray v. United States (C. C. A. 6), 265 F. 257, 258. The charge as given in the Betz and Webber cases was excepted to only generally, and without specifying any portion objected to. We are thus not required to review it (Holder v. United States, 150 U. S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 1010), and we find no such evidence of error, unfairness and prejudice as to justify review on our own motion. We may say, however, that, had the attention of the trial court been called to the criticism here made on the charge in the Webber case, presumably the subject of the criticism would have been then and there removed. In each ease we think the special instruction asked at the conclusion of the' charge was properly denied. We also think the requests in the Betz and Ewan cases for an instructed verdict in favor of plaintiffs in error were properly denied. We find no error on the court’s part in respect to the alleged misconduct of the government’s counsel in putting a question to a witness on" }, { "docid": "6274005", "title": "", "text": "federal courts have departed from the rule of wholly rejecting the evidence of accomplice witnesses, unless corroborated by other and credible testimony or by facts and circumstances appearing in evidence, and hold that such evidence, if believed by the jury, may alone afford basis for conviction, the jury being cautioned to scrutinize it with care. Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502 Ann. Cas. 1917B, 1168; Wolf v. United States (C. C. A.) 283 F. 885. Under this rule, and so tested, we are not at liberty to set aside the judgment against any of these plaintiffs in error because alone of the bad character of these witnesses, and their admitted participation in the planning or executing of the crime. For Katofsky and Vigas, but particularly the former, who was not shown to have come within the court’s jurisdiction, it is especially urged that the conviction cannot be sustained under the indictment, which charges them with being principals, and fails to charge them with being aiders and abettors, or accessories before the fact, as specified in section 332 of the Criminal Code (18 USCA § 550), under which those who aid, abet, counsel, command, induce, or procure the commission of an offense defined in any law of the United States are declared to be principals. In the case of Colbeck et al. v. United States (C. C. A.) 10 F.(2d) 401, the identical proposition was urged on behalf of Hackethal, who was not present at that mail robbery. The indictment there was the same as here, charging him as principal only. In view of what we there said, we do not deem it necessary again to discuss the proposition, and we conclude that this objection is not well taken. For these two plaintiffs in error it is further urged that there was error in admitting evidence of O’Brien’s statements and actions after his arrest, and of the fact that, when arrested, he had saws in the soles of his shoes, and that after his confinement bars" }, { "docid": "13260520", "title": "", "text": "there was at least substantial evidence that the appellant had “counseled” the very concealment of which the bankrupt was subsequently guilty. See, also, Reinstein v. U. S., 282 F. 214 (C. C. A. 2); Kaufman v. U. S., 212 F. 613, Ann. Cas. 1916C, 466 (C. C. A. 2); U. S. v. Young & Holland Co., 170 F. 110, 113 (C. C.); Barron v. U. S., 5 F.(2d) 799, 802 (C. C. A. 1). It is urged that the court erred in declining to instruct the jury, as requested, to return a verdict of not guilty because appellant’s ease rested upon the unsupported testimony of Schussler. The proposition is without merit. It is contrary to the evidence and against the law. As above indicated, the evidence of Schussler had support in many particulars in the testimony of the Mertzes and Neisen-baum as well as in the record of the testimony of appellant himself, in the sixth Nei-senbaum Case. But, the evidence aside, there is nothing which forbids a conviction in a federal court upon the uncorroborated testimony of an accomplice if the jury believes it. Caminetti v. U. S., 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Richardson v. U. S., 181 F. 1, 9 (C. C. A. 3). The court committed no reversible error in declining to instruct the jury in the language of appellant’s request upon how they should regard the testimony of an accomplice. The court fairly instructed the jury upon that subject in the general charge. Other matters complained of were unex-cepted to in the court below. Affirmed." }, { "docid": "6274004", "title": "", "text": "the part played by each of plaintiffs in error in the planning and organization of the robbery, and as to O’Brien’s actual participation in it. Careful scrutiny of their testimony convinces us that, if believed by the jury, it is sufficient to sustain the conclusion that all three were instrumental in the instigation and planning of the robbery, and advised, encouraged, or assisted in devising ways and means for carrying it into execution — Katofsky at St. Louis, but not personally within the district where it occurred, Vigas at Springfield, where the robbery was enacted, but not shown to have been actually present and taking part in the robbery, and O’Brien being shown additionally to have assisted in the robbery. Unquestionably Kirby and Shelton are both disreputable characters, whose testimony a jury should bo cautious in accrediting, especially where its effect may be to deprive ono of his liberty. But it may well be conceived that a witness, however degraded and criminal, may tell a story which bears the stamp of truth; and so the federal courts have departed from the rule of wholly rejecting the evidence of accomplice witnesses, unless corroborated by other and credible testimony or by facts and circumstances appearing in evidence, and hold that such evidence, if believed by the jury, may alone afford basis for conviction, the jury being cautioned to scrutinize it with care. Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502 Ann. Cas. 1917B, 1168; Wolf v. United States (C. C. A.) 283 F. 885. Under this rule, and so tested, we are not at liberty to set aside the judgment against any of these plaintiffs in error because alone of the bad character of these witnesses, and their admitted participation in the planning or executing of the crime. For Katofsky and Vigas, but particularly the former, who was not shown to have come within the court’s jurisdiction, it is especially urged that the conviction cannot be sustained under the indictment, which charges them with being principals, and fails to" } ]

[ { "docid": "15620079", "title": "", "text": "called him and he apologized for not getting back with her and said “they would be more than happy to have [her] as a driver at Buckeye Valley.” After Rosebrough resumed her training, Carper suggested she contact the State to schedule her commercial driver’s license (“CDL”) certification test which required Rosebrough to attend with a trainer and a school bus. Carper told Rosebrough she could come any day or time, so Rosebrough scheduled her test for March 20. On the morning of March 19, Carper called Rosebrough to say she could not attend the test because Cope had refused to let other bus drivers split Carper’s bus route and she was unable to get a substitute. Rosebrough cancelled the test with the State and did not ask the State or Carper to reschedule because she “believe[d] there would never be a substitute driver” available to allow a trainer to take her to get her test “after everything they had done to me.” After canceling her test with the State, Rosebrough called Superintendent Schiller and requested her paperwork so she could finish her training and obtain her CDL elsewhere. Over the next several months, Rosebrough contacted several other testing centers and school districts but learned she could only be trained by the school district that ultimately hired her. Rosebrough never contacted Buckeye Valley again to return and finish her training. On March 11, 2009, Rosebrough filed suit against Buckeye Valley asserting violations of the ADA and the Ohio Revised Code, § 4112.02 et seq., for discrimination due to a disability, a perceived disability, and disparate treatment. She also alleged intentional infliction of emotional distress. In 2010, Buckeye Valley moved for summary judgment asserting Rosebrough could not establish a prima facie case on any of her claims, and Buckeye Valley was entitled to political subdivision immunity on her tort claim and was not liable for punitive damages as a matter of law. Finding that Rosebrough was not qualified to be a bus driver because she did not have a CDL, the district court granted summary judgment to Buckeye Valley on all claims." } ]

[ { "docid": "15620086", "title": "", "text": "school bus driver; in fact, Rosebrough admits that a CDL is required in order for her to perform as a school bus driver. However, Rosebrough asserted below, and again more carefully on appeal, that she was hired “as an employee without wages, provisionally subject to being issued a CDL,” (R. 21, Response in Opposition to Summary Judgment Motion, at 15-16), in other words, as a “bus driver trainee,” (Appellant Br. at 23). The plain language of the ADA covers discrimination on the basis of disability during job training. 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”). The coverage provisions include this expansive list, extending beyond recognized traditional employment activities, to prevent periods — including training periods — during which discrimination might be undertaken with impunity. Thus, the statutory inclusion of “job training” protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer. See United States v. Miss. Dep’t of Public Safety, 321 F.3d 495, 500 n. 4 (5th Cir. 2003) (holding the ADA protects trainee at patrol safety academy from discrimination); Desmond v. Mukasey, 530 F.3d 944, 967 (D.C.Cir.2008) (finding a genuine issue of material fact requiring trial on discrimination claim by FBI trainee who had not graduated from FBI academy). When the events at issue in this litigation occurred, Rosebrough was in the job training period necessary to obtain her CDL and learn how to perform as a school bus driver. Buckeye Valley does not state the essential functions of Rosebrough’s training position. However, in reviewing step two of Rosebrough’s prima facie case, it is unnecessary to speculate" }, { "docid": "15620087", "title": "", "text": "to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer. See United States v. Miss. Dep’t of Public Safety, 321 F.3d 495, 500 n. 4 (5th Cir. 2003) (holding the ADA protects trainee at patrol safety academy from discrimination); Desmond v. Mukasey, 530 F.3d 944, 967 (D.C.Cir.2008) (finding a genuine issue of material fact requiring trial on discrimination claim by FBI trainee who had not graduated from FBI academy). When the events at issue in this litigation occurred, Rosebrough was in the job training period necessary to obtain her CDL and learn how to perform as a school bus driver. Buckeye Valley does not state the essential functions of Rosebrough’s training position. However, in reviewing step two of Rosebrough’s prima facie case, it is unnecessary to speculate as to wheth er she was “otherwise qualified” for the training position because Buckeye Valley concedes Rosebrough “was qualified to be a ‘trainee,’ was in fact a ‘trainee,’ and was given the training.” (Appellee Br. at 26). It is Rosebrough’s ADA-covered position as a trainee that is at issue, and there can be no logical basis for requiring her to have a CDL to be “otherwise qualified” for the position of training to obtain a CDL. Therefore, having a CDL was not necessary for Rosebrough to perform the essential functions of her training position, and the district court erred in holding otherwise. 2. Remaining Prima Facie Elements The district court did not address any prima facie elements of Rosebrough’s six discrimination claims except for the “otherwise qualified” element and neither party briefed the remaining elements on appeal. We remand to allow the district court to determine in the first instance whether Rosebrough has shown genuine issues of material fact on the remaining prima facie elements. See Yeschick v. Mineta, 521 F.3d 498, 506 (6th Cir.2008)" }, { "docid": "20872327", "title": "", "text": "taken would result in serious emotional distress to the plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) that the actor’s actions were the proximate cause of the plaintiffs psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it. Burkes v. Stidham, 107 Ohio App.3d 363, 668 N.E.2d 982, 989 (1995) (citations omitted), quoted in Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 433 (6th Cir.2012). We have held that Ohio courts narrowly define “extreme and outrageous conduct,” such that this standard is difficult to meet. Rosebrough, 690 F.3d at 434. In their stricken affidavits, Ondo and Simcox identify Park and Rojas as the officers who committed several of the more extreme actions (e.g., punching in the face), and uttered some of the offensive words. In district court, Park and Rojas claimed immunity under Ohio Revised Code § 2744.03(A)(6), while Plaintiffs argue that one of the statutory exceptions to that immunity applies. But because the district court struck the affidavits from the record, the record contains no evidence to support Plaintiffs’ IIED claim. The district court correctly granted summary judgment on this count. IV. CONCLUSION For the foregoing reasons, we hold that the district court was within its discretion when it struck the affidavits that were based upon “personal knowledge and belief,” and did not err in concluding that Defendants are entitled to summary judgment. We therefore AFFIRM the judgment of the district court. . \"Unpublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels, but their reasoning may be instructive or helpful.\" Crump v. Lafler, 657 F.3d 393, 405 (6th Cir.2011) (internal quotation marks and citation omitted). . It is of no moment that Totman’s statement was styled as a verified complaint, rather than an affidavit. The same rule governs both types of submissions for purposes of defeating" }, { "docid": "15725774", "title": "", "text": "TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir.1994). “The summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). “[T]he salutary purposes of summary judgment&emdash;avoiding protracted, expensive and harassing no less to discrimination cases than to commercial or other areas of litigation.” Id. “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224. II. Plaintiffs American’s with Disabilities Act Claim A. Legal Standard The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., prohibits employment discrimination by a “covered entity ... against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Employment discrimination claims under the ADA are evaluated under the now familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas and its innumerable progeny, (1) a plaintiff must first establish a prima facie case of discrimination; (2) the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions; if the employer does so, the McDonnell Douglas framework and its presumptions and burdens disappears, leaving the sole remaining issue of “discrimination vel non;” and thus, (3) the burden shifts back to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citations omitted). “For a disability discrimination claim under the ADA, a plaintiff must demonstrate that her disability was at least ‘a motivating factor’ for the adverse employment action.” See Wesley-Dickson v. Warwick Valley Cent. School Dist., 973 F.Supp.2d 386" }, { "docid": "15620081", "title": "", "text": "Rosebrough timely appealed. II. ANALYSIS A. Standard of Review This court reviews a district court’s grant of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009). Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a) (2010). The moving party has the burden of proving the absence of a genuine issue of material fact and its entitlement to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts, including inferences, are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Buckeye Valley moved for sum mary judgment, therefore this court must accept the facts alleged by Rosebrough as true and draw all reasonable inferences in her favor. B. Disability Discrimination Neither party argued below or on appeal that an action for handicap discrimination under Ohio law employs a different legal analysis than that for disability discrimination under the ADA. “[Bjeeause Ohio case law tends to suggest that it entails the same legal analysis as that under the ADA,” we may review Rosebrough’s state and federal claims solely under the ADA analysis. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir.2004); see also Martin v. Barnesville Exempted Vill. Sch. Dish Bd. of Educ., 209 F.3d 931, 934 n. 2 (6th Cir.2000) (“Both federal and Ohio disability discrimination actions require the same analysis.”); City of Columbus Civ. Serv. Comm’n v. McGlone, 82 Ohio St.3d 569, 697 N.E.2d" }, { "docid": "15620075", "title": "", "text": "OPINION JANE B. STRANCH, Circuit Judge. Plaintiff Tammy Rosebrough appeals the district court’s grant of summary judgment in favor of Defendant Buckeye Valley High School in her suit alleging discrimination and disparate treatment under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Ohio Revised Code, § 4112.02 et seq., and alleg ing intentional infliction of emotional distress. The district court held for Buckeye Valley on all claims based solely on the finding that Rosebrough was not a qualified individual under the ADA. For the following reasons, we REVERSE -the judgment of the district court and REMAND for further proceedings. I. BACKGROUND Tammy Rosebrough was born without a left hand. In September 2007, Rosebrough applied for a cook’s position at Buckeye Valley North High School. Rosebrough interviewed with department supervisor Rodger Cope, who told her the school was in desperate need of bus drivers and asked if she would be interested in that position. Cope mentioned he would need to check with the State to see if there were any restrictions that would prevent Rosebrough from driving a school bus. Rosebrough said she wanted to speak with her family, then called the next day to say she was interested in the position. Cope told her he was still waiting to hear back from the State about the restriction issue. In the meantime, Cope released a memorandum to employees citing the school’s need for bus drivers. Rosebrough later called Cope to ask “what was the hold up,” and Cope said again he would contact the State.' A few days later, on October 3 or '4, Cope called Rosebrough to inform her that a waiver is required from the Ohio Department of Education before an individual who is missing a limb is allowed to operate a school bus and told her to come to the office to pick up the waiver forms. Rosebrough received approval of the waiver from the Department of Education several weeks later on January 23, 2008. The State rejected Rosebrough’s first two waiver submissions because the first waiver’s medical evaluation was completed by" }, { "docid": "15620082", "title": "", "text": "Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Buckeye Valley moved for sum mary judgment, therefore this court must accept the facts alleged by Rosebrough as true and draw all reasonable inferences in her favor. B. Disability Discrimination Neither party argued below or on appeal that an action for handicap discrimination under Ohio law employs a different legal analysis than that for disability discrimination under the ADA. “[Bjeeause Ohio case law tends to suggest that it entails the same legal analysis as that under the ADA,” we may review Rosebrough’s state and federal claims solely under the ADA analysis. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir.2004); see also Martin v. Barnesville Exempted Vill. Sch. Dish Bd. of Educ., 209 F.3d 931, 934 n. 2 (6th Cir.2000) (“Both federal and Ohio disability discrimination actions require the same analysis.”); City of Columbus Civ. Serv. Comm’n v. McGlone, 82 Ohio St.3d 569, 697 N.E.2d 204, 206 (1998) (Because the “federal Americans with Disabilities Act (ADA) is similar to the Ohio handicap discrimination law ... [w]e can look to regulations and cases interpreting the federal Act for guidance in our interpretation of Ohio law.”). Buckeye Valley argued on summary judgment that Rosebrough could not establish any element of a prima facie case of discrimination on any of her claims. A prima facie case of discriminatory discharge requires a plaintiff to show (1) she is disabled; (2) she was otherwise qualified for the position, with or without reasonable accommodation; (3) she suffered an adverse action; (4) the employer knew or had reason to know of her disability; and (5) she was replaced or the job remained open. Plant v. Morton Int’l Inc., 212 F.3d 929, 936 (6th Cir.2000). “An individual is considered ‘disabled’ under the ADA if she (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 by" }, { "docid": "15620091", "title": "", "text": "to make out a prima facie claim of disability discrimination.” Because the district court erred in its analysis of Rosebrough’s discrimination claims, its rejection of those claims cannot form the basis for rejecting her emotional distress claim. It is certainly far from clear on this record that Rosebrough could show a gen uine issue of material fact regarding whether Buckeye Valley’s conduct was extreme and outrageous. See Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 633 (6th Cir.2009) (citing Baab v. AMR Servs. Corp., 811 F.Supp. 1246, 1269 (N.D.Ohio 1993) (“[T]o say that Ohio courts narrowly define ‘extreme and outrageous conduct’ would be something of an understatement.”)). However, as with Rosebrough’s discrimination claims, the district court did not reach the remaining elements of her emotional distress claim and the other elements were not briefed on appeal. The district court should be provided with the opportunity to consider this claim, and Buckeye Valley’s asserted defenses, in the first instance. III. CONCLUSION For the foregoing reasons, we REVERSE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion. . Rosebrough appears to rely on circumstantial evidence of discrimination and does not challenge the district court’s citation to indirect evidence tests. . In a disparate treatment claim, the plaintiff can satisfy the fifth element of the prima facie case by showing that similarly situated non-disabled employees were treated more favorably. See Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660 (6th Cir.1999). . Rosebrough used the phrase \"bus driver trainee” for the first time on appeal. Buckeye Valley responds that Rosebrough has waived the argument that she was \"otherwise qualified” to be a bus driver trainee. But Rosebrough argued to the district court that she was discriminated against during her training period. Thus, the argument is properly before us." }, { "docid": "15620089", "title": "", "text": "(finding a genuine issue of material fact on the sole issue on appeal and remanding for the district court to determine in the first instance whether the plaintiff met the remaining elements of his prima facie ADEA case); White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789, 808 (6th Cir.2004) (finding remand appropriate where consideration of remaining issue requires “a careful examination of the entire record”); Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 261-62 (6th Cir.2002) (reversing on grounds for summary judgment below and remanding consideration of remaining arguments in Title VII case). C. Intentional Infliction of Emotional Distress In order to defeat a motion for summary judgment on a claim for intentional infliction of emotional distress under Ohio law, a plaintiff must present evidence creating a genuine issue of material fact: (1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) that the actor’s actions were the proximate cause of the plaintiffs psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it. Burkes v. Stidham, 107 Ohio App.3d 363, 668 N.E.2d 982, 989 (1995) (citation omitted); accord Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). Serious emotional distress requires an emotional injury that is both severe and debilitating. Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 932 N.E.2d 313, 319 (2010). As with Rosebrough’s discrimination claims, the district court granted Buckeye Valley summary judgment on her emotional distress claim based solely on its analysis of the “otherwise qualified” prong. The court held “there cannot be a genuine issue of material fact with respect to ‘outrageous’ conduct by Buckeye Valley in light of the fact that this Court found that Rosebrough failed" }, { "docid": "15620090", "title": "", "text": "to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) that the actor’s actions were the proximate cause of the plaintiffs psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it. Burkes v. Stidham, 107 Ohio App.3d 363, 668 N.E.2d 982, 989 (1995) (citation omitted); accord Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). Serious emotional distress requires an emotional injury that is both severe and debilitating. Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 932 N.E.2d 313, 319 (2010). As with Rosebrough’s discrimination claims, the district court granted Buckeye Valley summary judgment on her emotional distress claim based solely on its analysis of the “otherwise qualified” prong. The court held “there cannot be a genuine issue of material fact with respect to ‘outrageous’ conduct by Buckeye Valley in light of the fact that this Court found that Rosebrough failed to make out a prima facie claim of disability discrimination.” Because the district court erred in its analysis of Rosebrough’s discrimination claims, its rejection of those claims cannot form the basis for rejecting her emotional distress claim. It is certainly far from clear on this record that Rosebrough could show a gen uine issue of material fact regarding whether Buckeye Valley’s conduct was extreme and outrageous. See Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 633 (6th Cir.2009) (citing Baab v. AMR Servs. Corp., 811 F.Supp. 1246, 1269 (N.D.Ohio 1993) (“[T]o say that Ohio courts narrowly define ‘extreme and outrageous conduct’ would be something of an understatement.”)). However, as with Rosebrough’s discrimination claims, the district court did not reach the remaining elements of her emotional distress claim and the other elements were not briefed on appeal. The district court should be provided with the opportunity to consider this claim, and Buckeye Valley’s asserted defenses, in the first instance. III. CONCLUSION For the foregoing reasons, we REVERSE the district court’s grant of summary judgment" }, { "docid": "20872326", "title": "", "text": "425, 429 (6th Cir.1997)) (emphasis omitted). As we have already explained, Plaintiffs’ excessive-force claim fails because of insufficient probative evidence to defeat summary judgment. Because Plaintiffs present no viable claim of excessive physical force, they can show no harm that other officers could have intervened to prevent. And because the alleged use of anti-homosexual slurs is not a violation of the Constitution regardless of whether it is examined as an excessive-force claim or an equal-protection claim, the failure of other officers to prevent that conduct did not violate Plaintiffs’ rights. F. Finally, we consider whether the district court erred in granting summary judgment to two of the defendants—Park and Rojas-—on Plaintiffs’ claim of intentional infliction of emotional distress (IIED). The district court exercised supplemental jurisdiction over that state-law claim, so we are required to apply Ohio law here. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The elements of IIED in the State of Ohio are: (1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) that the actor’s actions were the proximate cause of the plaintiffs psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it. Burkes v. Stidham, 107 Ohio App.3d 363, 668 N.E.2d 982, 989 (1995) (citations omitted), quoted in Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 433 (6th Cir.2012). We have held that Ohio courts narrowly define “extreme and outrageous conduct,” such that this standard is difficult to meet. Rosebrough, 690 F.3d at 434. In their stricken affidavits, Ondo and Simcox identify Park and Rojas as the officers who committed several of the more extreme actions (e.g., punching in the face), and uttered some of the offensive words. In district court, Park" }, { "docid": "15620083", "title": "", "text": "204, 206 (1998) (Because the “federal Americans with Disabilities Act (ADA) is similar to the Ohio handicap discrimination law ... [w]e can look to regulations and cases interpreting the federal Act for guidance in our interpretation of Ohio law.”). Buckeye Valley argued on summary judgment that Rosebrough could not establish any element of a prima facie case of discrimination on any of her claims. A prima facie case of discriminatory discharge requires a plaintiff to show (1) she is disabled; (2) she was otherwise qualified for the position, with or without reasonable accommodation; (3) she suffered an adverse action; (4) the employer knew or had reason to know of her disability; and (5) she was replaced or the job remained open. Plant v. Morton Int’l Inc., 212 F.3d 929, 936 (6th Cir.2000). “An individual is considered ‘disabled’ under the ADA if she (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 by her employer as having such an impairment.” Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir.2008) (citation omitted); see also 42 U.S.C. § 12102(2). The district court assumed without deciding that Rosebrough was disabled under the ADA but determined that she failed to show the second element because she lacked a CDL and thus was not “otherwise qualified” for the position. The court granted summary judgment to Buckeye Valley on all claims on this one basis. The district court did not reach the last three elements of the prima facie case. On appeal, the parties have focused their briefing on whether Rosebrough was a qualified individual under the ADA. 1. Qualified Individual All discrimination claims brought by Rosebrough require her to show “she was otherwise qualified for the position, with or without reasonable accommodation.” See Hopkins, 196 F.3d at 660. The ADA defines a “qualified individual” as follows: an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For" }, { "docid": "3571014", "title": "", "text": "NRSIA was dismissed on January 24, 2010. Jones then amended his complaint against NLI and NRS on February 17, 2011, to add a cause of action under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. After discovery, on November 10, 2011, the defendants moved for summary judgment. The district court held a hearing on December 14, 2011. On March 5, 2012, the district court issued a memorandum and order granting defendants’ motion. Jones, 847 F.Supp.2d at 220. The court concluded that Jones had failed to make out a prima facie case of disability discrimination because he could not demonstrate that he suffered from a disability under either federal or Massachusetts law, id., or that the accommodation he requested was reasonable, id. at 226. Jones timely appealed this decision on March 28, 2012. II. We review a district court’s grant of summary judgment de novo. Roman v. Potter, 604 F.3d 34, 38 (1st Cir.2010). We will uphold summary judgment where “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). We may affirm summary judgment “on any basis apparent in the record.” Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st Cir.2010). We analyze claims under the ADA and - under Massachusetts General Laws chapter 151B using the same framework. Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 33 n. 2 (1st Cir.2000). At times the two schemes may vary, but that is not at issue here. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff in a disability discrimination case must first make out a three-factor prima facie case. Ordinari ly, the plaintiff must show that he (1) is disabled within the meaning of the ADA; (2) is qualified to perform the essential functions of his job with or without a reasonable accommodation; and (3) was discharged or otherwise adversely affected in whole or in part because of his disability. See Richardson v. Friendly Ice" }, { "docid": "15620084", "title": "", "text": "her employer as having such an impairment.” Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir.2008) (citation omitted); see also 42 U.S.C. § 12102(2). The district court assumed without deciding that Rosebrough was disabled under the ADA but determined that she failed to show the second element because she lacked a CDL and thus was not “otherwise qualified” for the position. The court granted summary judgment to Buckeye Valley on all claims on this one basis. The district court did not reach the last three elements of the prima facie case. On appeal, the parties have focused their briefing on whether Rosebrough was a qualified individual under the ADA. 1. Qualified Individual All discrimination claims brought by Rosebrough require her to show “she was otherwise qualified for the position, with or without reasonable accommodation.” See Hopkins, 196 F.3d at 660. The ADA defines a “qualified individual” as follows: an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this sub- chapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). The district court held that a CDL is required to perform the essential functions of serving as a school bus driver. Because Rosebrough did not have a CDL, the court held she was not “otherwise qualified” to be a school bus driver and dismissed her claims. The district court relied on the Second Circuit case Kinneary v. City of New York, 601 F.3d 151 (2d Cir.2010). In Kinneary, the court held that a sludge boat captain whose captain’s license had expired was not “otherwise qualified” to be a captain because he could not perform the essential functions of his job without his license. Id. at 157. This case would be persuasive if we were reviewing claims by a" }, { "docid": "15620085", "title": "", "text": "the purposes of this sub- chapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). The district court held that a CDL is required to perform the essential functions of serving as a school bus driver. Because Rosebrough did not have a CDL, the court held she was not “otherwise qualified” to be a school bus driver and dismissed her claims. The district court relied on the Second Circuit case Kinneary v. City of New York, 601 F.3d 151 (2d Cir.2010). In Kinneary, the court held that a sludge boat captain whose captain’s license had expired was not “otherwise qualified” to be a captain because he could not perform the essential functions of his job without his license. Id. at 157. This case would be persuasive if we were reviewing claims by a school bus driver; in fact, Rosebrough admits that a CDL is required in order for her to perform as a school bus driver. However, Rosebrough asserted below, and again more carefully on appeal, that she was hired “as an employee without wages, provisionally subject to being issued a CDL,” (R. 21, Response in Opposition to Summary Judgment Motion, at 15-16), in other words, as a “bus driver trainee,” (Appellant Br. at 23). The plain language of the ADA covers discrimination on the basis of disability during job training. 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”). The coverage provisions include this expansive list, extending beyond recognized traditional employment activities, to prevent periods — including training periods — during which discrimination might be undertaken with impunity. Thus, the statutory inclusion of “job training” protects individuals while they receive the training required" }, { "docid": "15620078", "title": "", "text": "the doors on those buses are difficult to open. Presley denies making statements referencing Rosebrough’s disability. Cope told Rosebrough he would speak with Presley about the comments. Cope called Rosebrough for a follow-up meeting in his office where he said Carper and Presley told him Rosebrough was speeding, braking too fast, and not listening to instructions. Rosebrough testified Cope said “it was his trainer’s responsibility to make sure that I knew what I was doing and that it was his job to fire me if I wasn’t going to do the proper job.” She testified Cope said she “had become high maintenance,” slammed his fist down 'on the desk, and said “[t]he parents at Buckeye Valley will not be happy with you as a driver.” Rosebrough believed Cope meant the parents would not want Rosebrough because she had a hand missing. On February 19, Rosebrough and her husband met with the superintendent, John Schiller, who said he and Cope would discuss the issue. When Rosebrough did not hear anything from Schiller for several days, she called him and he apologized for not getting back with her and said “they would be more than happy to have [her] as a driver at Buckeye Valley.” After Rosebrough resumed her training, Carper suggested she contact the State to schedule her commercial driver’s license (“CDL”) certification test which required Rosebrough to attend with a trainer and a school bus. Carper told Rosebrough she could come any day or time, so Rosebrough scheduled her test for March 20. On the morning of March 19, Carper called Rosebrough to say she could not attend the test because Cope had refused to let other bus drivers split Carper’s bus route and she was unable to get a substitute. Rosebrough cancelled the test with the State and did not ask the State or Carper to reschedule because she “believe[d] there would never be a substitute driver” available to allow a trainer to take her to get her test “after everything they had done to me.” After canceling her test with the State, Rosebrough called Superintendent Schiller and requested" }, { "docid": "15620088", "title": "", "text": "as to wheth er she was “otherwise qualified” for the training position because Buckeye Valley concedes Rosebrough “was qualified to be a ‘trainee,’ was in fact a ‘trainee,’ and was given the training.” (Appellee Br. at 26). It is Rosebrough’s ADA-covered position as a trainee that is at issue, and there can be no logical basis for requiring her to have a CDL to be “otherwise qualified” for the position of training to obtain a CDL. Therefore, having a CDL was not necessary for Rosebrough to perform the essential functions of her training position, and the district court erred in holding otherwise. 2. Remaining Prima Facie Elements The district court did not address any prima facie elements of Rosebrough’s six discrimination claims except for the “otherwise qualified” element and neither party briefed the remaining elements on appeal. We remand to allow the district court to determine in the first instance whether Rosebrough has shown genuine issues of material fact on the remaining prima facie elements. See Yeschick v. Mineta, 521 F.3d 498, 506 (6th Cir.2008) (finding a genuine issue of material fact on the sole issue on appeal and remanding for the district court to determine in the first instance whether the plaintiff met the remaining elements of his prima facie ADEA case); White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789, 808 (6th Cir.2004) (finding remand appropriate where consideration of remaining issue requires “a careful examination of the entire record”); Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 261-62 (6th Cir.2002) (reversing on grounds for summary judgment below and remanding consideration of remaining arguments in Title VII case). C. Intentional Infliction of Emotional Distress In order to defeat a motion for summary judgment on a claim for intentional infliction of emotional distress under Ohio law, a plaintiff must present evidence creating a genuine issue of material fact: (1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff, (2) that the actor’s conduct was so extreme and outrageous as" }, { "docid": "23667899", "title": "", "text": "was transferred to the Eastern District of Tennessee on December 15, 1999. On July 31, 2000, the district court granted summary judgment to TVA on several grounds. Ma-hon timely appealed. II. Analysis ' We review the district court’s grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferences in favor of the nonmoving party. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1112-13 (6th Cir.2001). A. The Rehabilitation Act and the ADA Mahon makes his claim under § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which requires Federal agencies and instrumentalities to implement affirmative action plans to hire, place, and advance individuals with disabilities, and which creates a private right of action against covered entities for discrimination on the basis of disability. See id. at § 791(b). Although the Rehabilitation Act predates the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., analyses of claims made under the two acts run roughly parallel. See McPherson v. Michigan High School Athletic Ass’n, 119 F.3d 453, 459-60 (6th Cir.1997). “By statute, the Americans with Disabilities Act standards apply in Rehabilitation Act cases alleging employment discrimination.” Id. at 460 (citing 29 U.S.C. § 794(d)). Recent Supreme Court decisions sharply limiting the reach of the ADA thus also apply to cases brought under the Rehabilitation Act. See, e.g., Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 690-92, 151 L.Ed.2d 615 (2002); Sutton v. United Air Lines Inc., 527 U.S. 471, 481-89, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). To make out a prima facie employment discrimination case under’ either Act, a plaintiff must show (1) that she or he is an individual with a disability, (2) who was otherwise qualified to perform a job’s requirements, with or without reasonable accommodation, and (3) who was discriminated against solely because of the disability. See Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178 (6th Cir.1996) (ADA); Doherty v. Southern College of Optometry, 862 F.2d 570, 573 (6th Cir.1988), cert. denied 493 U.S. 810, 110 S.Ct. 53, 107" }, { "docid": "15620076", "title": "", "text": "restrictions that would prevent Rosebrough from driving a school bus. Rosebrough said she wanted to speak with her family, then called the next day to say she was interested in the position. Cope told her he was still waiting to hear back from the State about the restriction issue. In the meantime, Cope released a memorandum to employees citing the school’s need for bus drivers. Rosebrough later called Cope to ask “what was the hold up,” and Cope said again he would contact the State.' A few days later, on October 3 or '4, Cope called Rosebrough to inform her that a waiver is required from the Ohio Department of Education before an individual who is missing a limb is allowed to operate a school bus and told her to come to the office to pick up the waiver forms. Rosebrough received approval of the waiver from the Department of Education several weeks later on January 23, 2008. The State rejected Rosebrough’s first two waiver submissions because the first waiver’s medical evaluation was completed by a physical therapist, instead of the required orthopedic surgeon or physiatrist, and the second waiver was not filled out completely. Rosebrough testified she relied on Cope’s instructions and “filled out what [Cope] told me to fill out.” One or two days before Rosebrough received her waiver, Sandy Presley, a Buckeye Valley bus driver trainer, contacted Rosebrough to schedule her training, which began soon thereafter with another trainer, Deanna Carper. On February 15, Rosebrough met with Cope to discuss some issues she was having with her training. Relevant to this ease, Rosebrough complained that Presley made discriminatory comments to her about her disability on two separate occasions. On February 5, Presley said Rosebrough “was going to need a lot more [training] hours ... because of [her] arm” than another trainee who “knew the bus because he worked on cars and he was a race car driver.” On February 9, in front of Carper and the other trainee, Presley told Rosebrough she “won’t be able to drive bus 4 or 11 ... because of [her] hand” since" }, { "docid": "15620077", "title": "", "text": "a physical therapist, instead of the required orthopedic surgeon or physiatrist, and the second waiver was not filled out completely. Rosebrough testified she relied on Cope’s instructions and “filled out what [Cope] told me to fill out.” One or two days before Rosebrough received her waiver, Sandy Presley, a Buckeye Valley bus driver trainer, contacted Rosebrough to schedule her training, which began soon thereafter with another trainer, Deanna Carper. On February 15, Rosebrough met with Cope to discuss some issues she was having with her training. Relevant to this ease, Rosebrough complained that Presley made discriminatory comments to her about her disability on two separate occasions. On February 5, Presley said Rosebrough “was going to need a lot more [training] hours ... because of [her] arm” than another trainee who “knew the bus because he worked on cars and he was a race car driver.” On February 9, in front of Carper and the other trainee, Presley told Rosebrough she “won’t be able to drive bus 4 or 11 ... because of [her] hand” since the doors on those buses are difficult to open. Presley denies making statements referencing Rosebrough’s disability. Cope told Rosebrough he would speak with Presley about the comments. Cope called Rosebrough for a follow-up meeting in his office where he said Carper and Presley told him Rosebrough was speeding, braking too fast, and not listening to instructions. Rosebrough testified Cope said “it was his trainer’s responsibility to make sure that I knew what I was doing and that it was his job to fire me if I wasn’t going to do the proper job.” She testified Cope said she “had become high maintenance,” slammed his fist down 'on the desk, and said “[t]he parents at Buckeye Valley will not be happy with you as a driver.” Rosebrough believed Cope meant the parents would not want Rosebrough because she had a hand missing. On February 19, Rosebrough and her husband met with the superintendent, John Schiller, who said he and Cope would discuss the issue. When Rosebrough did not hear anything from Schiller for several days, she" } ]

[ { "docid": "22312880", "title": "", "text": "Company’s officers rose during the period from 1969 and 1978 and Haskell irrationally excluded some older persons from the base “class” used by him for comparison. The courts have consistently rejected similar statistical samples as too small to be meaningful. See, e.g., Mayor of Philadelphia v. Educational Equality League, supra, 415 U.S. at 621, 94 S.Ct. at 1333 (sample of thirteen too small to be probative); Pace v. Southern Railway System, 701 F.2d 1383, 1389 (11th Cir.1983) (twelve employment decisions over twelve years too few to be meaningful); Coble v. Hot Springs School District No. 6, 682 F.2d 721 (8th Cir.1982) (sample of fifteen employment decisions over a course of eight years “too small to support any inference of a discriminatory pattern or practice”); Turner v. Texas Instruments Inc., 555 F.2d 1251, 1257 (5th Cir.1977) (eight employment decisions over a two-year period too few to be meaningful). The officers' “pattern and practice” testimony was also inadmissible on other grounds. Some witnesses were improperly permitted to give subjective evaluations of their own and of their fellow officers’ performance without furnishing the bases for their evaluations. See Sweeney v. Research Foundation, 711 F.2d 1179, 1185 (2d Cir.1983); Moorhouse v. Boeing Co., 501 F.Supp. 390, 393 (E.D.Pa.), aff'd, 639 F.2d 774 (3d Cir.1980). Two of the 10 discharged officers were never replaced. Five were replaced by older persons and one by a person only eight months the discharged officer’s junior. Under these circumstances their testimony, aside from presenting unnecessary collateral issues, provided “no basis for an inference of discrimination.” Pace v. Southern Railway System, supra, 701 F.2d at 1392 n. 8. Since the testimony of the six former Company officers as to the circumstances of their terminations and those of other Company officers was insufficient to show a pattern and practice of discrimination, it was not relevant to the question of whether Haskell was terminated for age-related reasons. Moreover, the probative value of the testimony was so “substantially outweighed by the danger of unfair prejudice” that it definitely should have been excluded by the district court in accord with Fed.R.Evid. 403. As the" } ]

[ { "docid": "3025481", "title": "", "text": "workers in the Premium Review Section, of which one person appears to be over forty years of age.- Even accepting Plaintiffs numbers at face value, along with his assertion that the only employee in that Section who is over forty works part-time, the sample size of thirteen employees is too small to create an inference of discrimination. See Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974)(holding racial-composition percentage comparisons with respect to thirteen-member panel “were correctly rejected by the District Court as meaningless”); see also Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 (6th Cir.1987)(ehar-acterizing sample of seventeen people as “suspect”); Haskell, 743 F.2d at 121 (sample of ten terminations over eleven-year period “statistically insignificant” and “too small to be meaningful”)(collecting cases where samples ranged from eight to fifteen). Apart from the small number of employees in the Premium Review Section, the Court also harbors serious doubts that the Premium Review Section, as opposed to the total number of employees in all of the sections of the Underwriting Department, is the proper pool of employees to look to for statistical purposes. It is, after all, undisputed that underwriters at RPC are rotated through the various sections of the Underwriting Department. (Finnegan Certif. ¶ 3; RPC’s Rule 3(g) Statement ¶ 4.) Plaintiff, however, failed to supply the Court with relevant figures in this regard. 6. Final Comments Although not addressed directly by RPC, the Court observes that Plaintiff was sixty-three years old when he was hired by RPC— well-within the protected class. This cuts against Plaintiffs argument that RPC’s real reason for terminating him was his age and, more specifically, that RPC spent a “whole year ... deliberately] maneuvering and manipulating] to finally find a legitimate reason to terminate [Plaintiff].” (Pl.’s Statement at 2); see Piasecki v. Daughters of Jacob Nursing Home, Inc., 808 F.Supp. 1136, 1141 (S.D.N.Y.1992)(fact that employer hired plaintiff at age seventy “suggests a non-discriminatory intent”); Melnyk v. Adria Lab., 799 F.Supp. 301, 319 (W.D.N.Y.1992)(“Without additional evidence, it is difficult to justify a conclusion of age" }, { "docid": "16410962", "title": "", "text": "his prior term of employment; petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and practice with respect to minority employment. On the latter point statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this ease conformed to a general pattern of discrimination against blacks.” As previously stated, we must always remember that McDonnell Douglas is an individual discrimination case, not a class action, and the same is true of the case at bar. The court further elucidated the principles as to the use of statistics in International Brotherhood of Teamsters v. U. S., - U.S. -, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), where in a class action case the court cited McDonnell Douglas for the use of statistics and went on to say: “We have repeatedly approved the use of statistical proof where it reached proportions comparable to those in this case to establish a prima facie case of racial discrimination in jury selection cases , . . Statistics are equally competent in proving employment discrimination. We caution only that statistics are not irrefutable. They come in an infinite variety and, like any other kind of evidence they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” The court further in Footnote # 20 said: “Consideration such as small sample size may of course detract from the value of such evidence. See e. g. Mayor of Phila. v. Educational Equality League, 415 U.S. 605 [620-621] 94 S.Ct. 1323 [1333], 39 L.Ed.2d 630 (1974)”. In the cited case of Mayor of Philadelphia, the court also issued a caveat with respect to use of statistics where the samples were small saying “Furthermore, the District Court’s concern for the smallness of the sample presented by the 13-member panel was also well founded”. (415 U.S. 621, 94 S.Ct. 1333) . The court in Mayor of Phila. supra also had an observation which is of the greatest importance in the ultimate decision in our case where it said" }, { "docid": "23557641", "title": "", "text": "the statistics have no value and fail to establish a prima facie case. This conclusion is buttressed by Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974) wherein failure to refer to the relevant labor pool was deemed to render the statistics presented “meaningless”. On the other hand in regard to the Appeals Court's action entering judgment for the plaintiff the Supreme Court reversed saying: “The Court of Appeals totally disregarded the possibility that this prima facie statistical proof in the record might at the trial court level be rebutted by statistics dealing with Hazelwood’s hiring after it became subject to Title VII.” Hazel-wood, supra 97 S.Ct. at 2742. The disposition of this issue suggests that where the discrepancy alleged is the inclusion of employment decisions which are irrelevant in time to the alleged acts, the comparison is sufficient to support a prima facie case and shift the burden to the defendant to show that its actions during the relevant period rebut the inference of discrimination raised by the plaintiff’s broad summary. This is buttressed by the approach taken to the statistical evidence in Teamsters. This distinction separates those statistics which can have no probative force, even if unrebutted, from those which will serve to show a relevant existing disparity unless the disparity is justified by the defendant. A comparison of apples to oranges can never show such a relevant disparity so no explanation is required. Thus this Court places the burden on the plaintiff to demonstrate its statistics to show a relevant comparison. In order to meet this burden it must have a sample from Allison which is adequately large to allow the result of the sample to be meaningful. Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974). The plaintiffs further must show that they are comparing the sample at Allison to the relevant pool of labor for that sample. Hazelwood, supra 97 S.Ct. at 2743. Here the relevant labor pool is not the" }, { "docid": "7984828", "title": "", "text": "market in the Tallahassee area.” The district court was not incorrect in treating the statistical evidence with caution in view of the relatively small number of employees at Tallahassee Motors. While there is no numerical cutoff point for statistical significance, the smaller the sample size, the greater the likelihood that the underrepresentation reflects chance rather than discriminatory practices. In Ochoa v. Monsanto Co., 473 F.2d 318, 320 (5th Cir. 1973), for example, the Court held that because of the smallness of the numbers involved, the district court was not compelled to set in train the usual presumptions. Courts have suggested on many other occasions that the “small universe” to which statistics relate may preclude significant comparisons. See, e. g., Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1332, 39 L.Ed.2d 630 (1974) (underrepresentation of blacks on 13-member panel); Adams v. Reed, 567 F.2d 1283, 1287 (5th Cir. 1978); Robinson v. City of Dallas, 514 F.2d 1271, 1273 (5th Cir. 1975); Cupples v. Transport Insurance Co., 371 F.Supp. 146, 149 n.1 (N.D.Tex.), aff’d, 498 F.2d 1091 (5th Cir. 1974) (small number of females less probative in company of only 90 employees than in larger company). But see Long v. Sapp, 502 F.2d 34, 40-41 (5th Cir. 1974) (without discussing sample size, Court found prima facie case where plaintiff showed, among other things, that two of county’s 51 employees were black). To buttress his statistical evidence of defendant’s pattern or practice of discrimination, plaintiff argues other evidence in support of his class allegations. Plaintiff maintains that defendant’s minority recruiting efforts were minimal. For example, while one of defendant’s vice presidents professed a strong interest in hiring qualified blacks and had spoken to the president of Florida A & M University, a largely black university in Tallahassee, about referring qualified blacks, he failed to visit the school’s placement office. Plaintiff points out that although defend ant’s sales manager spoke once to Col. Jenkins, the university’s director of development, about referring black salesmen, he never followed up on the conversation. This evidence does little to suggest racial discrimination on" }, { "docid": "2409503", "title": "", "text": "analysis). See also D. Baldus & J. Cole, supra at 322-28 (selected methods for calculating tests of statistical significance). For a number of reasons, moreover, we entertain serious doubt that this case lends itself to reliable statistical analysis. First, the promotion of only four cement finishers to foremen for the First National Bank project (or even the entire ten cement finishers employed by the Company as foremen on all of its Little Rock projects from 1973 to 1975) may constitute too small a sample size to establish a prima facie finding of discrimination through statistical analysis. See, e. g., Mayor v. Educational Equality League, supra, 415 U.S. at 621, 94 S.Ct. at 1333 (smallness of sample size is important flaw in straight percentage comparisons); Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975) (“[Statistical evidence derived from an extremely small universe, as in the present case, has little predictive value and must be disregarded.”). See also Shoben, supra at 801 & n.37 (when the sample size is small, a test based upon the assumption of normality may not be used). Although a gross statistical disparity may be evidence of discrimination for purposes of Title VII, “[considerations such as small sample size may, of course, detract from the value of such evidence.” International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 339-40 n.20, 97 S.Ct. at 1856-1857 n.20. Cf. Castaneda v. Partida, 430 U.S. 482, 497 n.17, 97 S.Ct. 1272, 1281 n.17, 51 L.Ed.2d 498 (1977) (large sample of 870). Here, the promotion of one less or one more black among the seven promotions that occurred during the period in question would result in over a fourteen percent change in the racial, composition of the foremen group. Cf. Mayor v. Educational Equality League, supra, 415 U.S. at 610-11, 94 S.Ct. at 1328-1329 (upholding district court’s rejection of data as unreliable, in part, because the change of one position in a thirteen-member panel would alter racial composition by eight percent). Second, tests of significance require some assurance of homogeneity among the candidates in the pool from" }, { "docid": "3025480", "title": "", "text": "that. Schmidt is not a part-time worker, but rather a full-time underwriter. (Finnegan Reply Certif. ¶ 6.) To be sure, an individual disparate treatment plaintiff may use statistical evidence regarding an employer’s general practices at the pretext stage to help rebut the employer’s purported nondiscriminatory explanation. Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing ■the likelihood that an employer’s ’offered explanation for an employment decision regarding a particular individual masks a discriminatory motive. Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990) (citations omitted). Nevertheless, statistical evidence based upon small samples is generally not probative of discrimination, see Haskell, 743 F.2d at 120 (“For ... statistical evidence to be probative, ... the sample must be large enough. to permit an inference that age was a determinative factor in the employer’s decision.”), because “statistical significance becomes harder to attain as the sample size shrinks.” Coates v. Johnson & Johnson, 756 F.2d 524, 541 (7th Cir.1985). In the instant case, the relevant sample is the “approximately 13” workers in the Premium Review Section, of which one person appears to be over forty years of age.- Even accepting Plaintiffs numbers at face value, along with his assertion that the only employee in that Section who is over forty works part-time, the sample size of thirteen employees is too small to create an inference of discrimination. See Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974)(holding racial-composition percentage comparisons with respect to thirteen-member panel “were correctly rejected by the District Court as meaningless”); see also Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 (6th Cir.1987)(ehar-acterizing sample of seventeen people as “suspect”); Haskell, 743 F.2d at 121 (sample of ten terminations over eleven-year period “statistically insignificant” and “too small to be meaningful”)(collecting cases where samples ranged from eight to fifteen). Apart from the small number of employees in the Premium Review Section, the Court also harbors serious doubts that the Premium Review Section, as opposed to the total number of employees in all of" }, { "docid": "3104644", "title": "", "text": "probative value because its underlying statistics include teachers who are not certified as administrators and are thus overinclusive. Certification as an administrator is a prerequisite to consideration for an administrative position. “When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller groups of individuals who possess the necessary qualifications) may have little probative value.” Hazelwood School District v. United States, 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. The comparison between the number of male and female certified administrators who in fact held administrative positions in Ex. 9 is relevant, but we conclude that the sample size involved here is too small to support any inference of discrimination in promotion. See Teamsters v. United States, 431 U.S. at 339 n.20, 97 S.Ct. at 1856 n.20 (“Considerations such as small sample size may ... detract from the value of [statistical] evidence.”); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S.Ct. 1323, 1333-1334, 39 L.Ed.2d 630 (1974) (sample of thirteen); EEOC v. American National Bank, 652 F.2d at 1193-94 (two managerial level hires in seven years); White v. City of San Diego, 605 F.2d at 461, citing Morita v. Southern California Permanente Medical Group, 541 F.2d 217, 220 (9th Cir. 1976) (sample of eight), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765 (1977); Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975) (sample of five). Determining whether a given number of employment decisions is too small to be statistically meaningful is necessarily imprecise. Standard deviation analysis is not particularly helpful in evaluating the statistical significance of small samples. See Eubanks v. Pickens-Bond Construction Co., 635 F.2d at 1355 n.3 (McMillian, J., dissenting in part). The danger of unfairness to the employer in resting inference of discriminatory employment practices on proof involving small total members of employment decisions is obvious. But there is the countervailing consideration that, given the difficulties of proving discriminatory motive under any circumstances, a too ready rejection of claims solely on this account practically precludes proof of" }, { "docid": "17317992", "title": "", "text": "requisite discriminatory impact. To prove discriminatory impact, plaintiffs frequently use “statistics from which it may be inferred that the employer’s employment practice significantly disadvantaged employees [in the protected class].” Cherchi, 693 F.Supp. at 166. Plaintiffs’ statistics show that if Bally’s had followed its former layoff policy based solely on seniority, only 25% of those terminated (four out of sixteen employees) would have been in the protected class, rather than 63% (ten out of sixteen employees). The Court finds this evidence unconvincing. First, the sample size of sixteen terminated employees is insufficient to find disparate impact. Courts have consistently found similar sample sizes as too small to be meaningful. See, e.g., Teamsters v. United States, 431 U.S. 324, 339 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977) (“Considerations of such a small' sample size may, of course, detract from the value of [statistical] evidence”); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974) (approving of district court’s concern for smallness of sample size of thirteen); Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 n. 7 (6th Cir.1987) (“small statistical samples provide little or no probative force to show discrimination”); Krystof v. Hyatt Corp., 827 F.Supp. 490, 493 (N.D.Ill.1993) (citing numerous cases rejecting statistical conclusions based on small samples). The Third Circuit has held that “[a]n adverse impact on a single employee, or even a few employees, is not sufficient to establish disparate impact.” Massarsky, 706 F.2d at 121. The lack of probative value from such a small sample size is evident when one examines the ages of the entire staff of fioorpeople at Bally’s, rather than just the terminated employees. Bally’s employed 221 fioorpeople before the reduction in force of whom ninety-four, over 40%, were forty or older. (Defendant’s Reply Br. Attach. A.) Moreover, eleven of the ninety-four were in the oldest age group (fifty-five to sixty-six). The reduction in force barely affected the age distribution among the remaining floor-people. Employees in the thirty-five to thirty-nine age group increased by 2%, while those in the fifty to" }, { "docid": "7980522", "title": "", "text": "1281 n. 17, 51 L.Ed.2d 498 (1977). If the probability that a particular distribution could have occurred randomly is low enough, then it constitutes evidence that the distribution, and hence the disparity, was not a chance occurrence. But the district court in effect ruled that the statistically insignificant disparity in promotion rates was probative evidence of the absence of a correlation between race and promotion. But where statistics are based on a relatively small number of occurrences, the presence or absence of statistical significance is not a reliable indicator of disparate impact. See International Bhd. of Teamsters, 431 U.S. at 339-40 n. 20, 97 S.Ct. at 1856-57 n. 20; Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974); 44 Fed.Reg. 11996, 11999 (March 2, 1979). For smaller samples the value of the standard deviation rule drops off, see Baldus & Cole, supra, § 9.1, and gives emphasis to Mark Twain’s comment that there are “lies, damned lies and statistics.” It is for this reason that, in cases involving small or marginal samples, other indicia raising an inference of discrimination must be examined. See, e.g., Segar v. Smith, 738 F.2d 1249, 1283-84 (D.C.Cir.1984) (where failure to show significance of disparity in one set of promotions is due to small sample size, evidence of other discrimination, including other promotion decisions, may suffice to show disparate impact), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1019-21 (1st Cir.1974) (other evidence of discrimination may supplement statistical evidence where small sample size precludes showing of significant disparity), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). Here, other evidence points unmistakably toward the conclusion that the observed disparities in promotion rates were related to the candidates’ race. The plaintiffs were able to point to a specific element of the promotion process, the written test, and show—using in that aspect of the case a sufficiently large sample size—that it resulted in a statistically significant disparity. There is no doubt that" }, { "docid": "6887291", "title": "", "text": "from policy and procedures is inherently inconsistent with a disparate impact claim, which is premised on a specific policy or practice that is applied equally to candidates but has a disproportionate impact on certain groups”). Second, for similar reasons, Collette’s Complaint fails to allege any “significant” disparate impact, or indeed, any meaningful impact at all. While the Complaint appears to allege a disparate impact on non-Jewish applicants for “management positions” (CompLIffl 23, 57), in response to defendant’s motion, Collette makes clear1 that in fact she has a good faith basis for alleging no more than that in this particular instance, the candidates hired as Director and Associate Director of CME were both Jewish, while she, an unsuccessful candidate, is not. (Pl.Mem.9.) Collette does not allege that the employees at St. Luke’s generally, or at any particular level of responsibility, or within any particular department, are disproportionately Jewish. Nor does she provide any information about the religious or ethnic backgrounds of any of the applicants for the positions other than the two successful candidates and herself, let alone for the relevant pool of potential applicants. Even if such information were provided, the carefully-pared category of jobs on which Collette focuses is too small for the Court to engage in a meaningful inquiry into whether the hiring of Jewish candidates for these two specific positions constituted a “disparate impact” in any statistically-significant sense. As the Second Circuit has held, “[t]he smaller the sample, the greater the likelihood that an observed pattern is attributable to other factors and accordingly the less persuasive the inference of discrimination to be drawn from it.” Pollis v. New School for Social Research, 132 F.3d 115, 121 (2d Cir.1997). In Pollis, the court held that evidence based on a sample of only eight tenured male professors was insufficient to support a claim of disparate impact. Col-lette’s sample of two Jewish managers is even smaller, and, therefore, even if the defendant’s purported failure to post available job openings constitutes a cognizable employment practice, Collette has not alleged the corresponding requirement of significant disparate impact to non-Jewish applicants. See also" }, { "docid": "15062463", "title": "", "text": "with plaintiff’s termination data. Plaintiff’s proffered hiring evidence does not approach this level of sophistication and must be excluded as irrelevant. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974); Steinberg v. St. Regis, supra, 583 F.Supp. at 423. Plaintiff’s proffered discharge data is another matter. Plaintiff seeks to present statistical evidence that although the ratio of employees not protected by the ADEA to protected employees in the relevant workforce was 50:15, 100% of those “managed out” over a three-year period were over age 40 and 80% were over age 50. This type of comparison is clearly relevant to the issue of discriminatory discharge. See, e.g., Pirone v. Home Ins. Co., supra, 559 F.Supp. at 312. While there are undoubtedly legitimate as well as discriminatory factors which might explain this disparity, there is no doubt that this evidence, if believed, would support an inference of discrimination when juxtaposed with plaintiff’s other offerings. Defendant also challenges the relevance of plaintiff’s statistical showing based on the size of the pertinent sample. Although this is clearly a concern whenever a pattern of discriminatory behavior is alleged, Mayor of Philadelphia v. Educational Equality League, supra, 415 U.S. at 621, 94 S.Ct. at 1333-34; Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir.1984), the employee pool and brief time frame at issue here are of probative value and are admissible. See, e.g., Poklitar v. CBS, Inc., 652 F.Supp. 1023, 1028 (S.D.N.Y.1987)-(Walker, J.) (four of eight employees fired were over age forty while all five employees hired were under forty). Finally, defendant asserts that evidence regarding the employment histories of several former employees allegedly “managed out” of PepsiCo for discriminatory reasons is not relevant to the employment decision which affected plaintiff. Although such witnesses clearly may not “give subjective evaluations of their own and of their fellow [employees’] performance without furnishing the bases for their evaluations,” Haskell v. Kaman Corp., supra, 743 F.2d at 121, testimony or other evidence regarding discriminatory treatment of other employees would be probative of a discriminatory termination policy such as" }, { "docid": "3104643", "title": "", "text": "fill administrative positions from within the school district (with the possible exception of the superintendent position). Available administrative positions were posted on bulletin boards in school buildings and advertised in local newspapers. The highest level administrative positions were held almost exclusively by males: the superintendent, the three assistant superintendents, the high school principal, the two junior high school principals, the five assistant high school and junior high school principals, and five of the six elementary school principals are male; only one elementary school principal is female. In addition, twelve positions, mostly administrative or supervisory, have never been held by a woman: superintendent, assistant superintendent, business manager, football coach, auto mechanics, driver’s education, assistant principal, coordinator of vocational education and of distributive education, athletic director, maintenance director, and band director. Appellants also presented evidence of specific instances of discrimination. Upon further examination, however, we conclude that appellants’ statistical evidence lacks probative value. Plaintiffs’ Ex. 8, showing that 21-22% of the male teachers held administrative positions while only 1-2% of the female teachers did so, has little probative value because its underlying statistics include teachers who are not certified as administrators and are thus overinclusive. Certification as an administrator is a prerequisite to consideration for an administrative position. “When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller groups of individuals who possess the necessary qualifications) may have little probative value.” Hazelwood School District v. United States, 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. The comparison between the number of male and female certified administrators who in fact held administrative positions in Ex. 9 is relevant, but we conclude that the sample size involved here is too small to support any inference of discrimination in promotion. See Teamsters v. United States, 431 U.S. at 339 n.20, 97 S.Ct. at 1856 n.20 (“Considerations such as small sample size may ... detract from the value of [statistical] evidence.”); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S.Ct. 1323, 1333-1334, 39 L.Ed.2d 630 (1974) (sample of thirteen); EEOC v." }, { "docid": "1487641", "title": "", "text": "no role in selecting from the initial pool of applicants the seven “best qualified” who would be eligible for promotion. His recommendation was only one part of a four-step process, and plaintiff has not offered any meaningful evidence that the process was corrupted by bias at any other stage or alleged bias on the part of any other individual involved. Nor do we believe plaintiff can prove, based on the results of approximately six recommendations, that the Career Board “rubber stamped” Guccione’s recommendations, or that the Director of the USMS did not exercise unbiased, independent judgment. Courts routinely reject statistical evidence of discrimination based on such small sample sizes because the results are not probative. See, e.g., Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 121 (2d Cir.1997) (“The smaller the sample, the greater the likelihood that an observed pattern is attributable to [nondiscriminatory] factors and accordingly the less persuasive the inference of discrimination to be drawn from it.”); Alleyne v. Four Seasons Hotel—N.Y., 2001 WL 135770, at *12 (S.D.N.Y. Feb.15, 2001) (citing cases). By the same reasoning, we conclude that plaintiff can not prove the entire promotion process is a sham, and that Guccione’s opinion was all that mattered, based on the results of just six recommendations. Furthermore, the list is far less probative than plaintiff would have us believe. Contrary to plaintiffs assertion, the list is not actually in age order. Three of the seven candidates are ranked higher than a younger candidate, and the oldest candidate (by four years) is not ranked last, but fifth out of seven. Plaintiffs attack on the credibility of the promotion process is further undermined by the fact that, of the seven candidates who survived the initial cut and made the best qualified list (out of an initial applicant pool of nineteen), five were in the protected age group. Plaintiff has not presented any evidence that would enable a fact finder to conclude that Guccione’s recommendation was anything other than a legitimate ranking of the candidates based on his unbiased assessment of their qualifications. c. Other Occasions on Which Plaintiff" }, { "docid": "2409502", "title": "", "text": "give rise to an inference of discrimination. Neither the record nor the district court’s findings of fact, however, contain any appropriate statistical or legal analysis of the three-year employment data that would permit such an inference to be drawn. The district court merely stated the actual number and percentage of black foremen for the three years in question and the number and percentage of black cement finishers on the First National Bank job during that period. To infer a prima facie case of discrimination from these numbers and percentages, the court needed to go beyond presentation of the raw data to application of an appropriate and recognized test for determining the statistical significance of any observed disparity. See Mayor v. Educational Equality League, 415 U.S. 605, 619-20, 94 S.Ct. 1323, 1332-1333, 39 L.Ed.2d 630 (1974) (rejecting as unreliable “simplistic percentage comparisons” of the racial composition of a thirteen-member nominating panel and the population of Philadelphia). Cf. Hazelwood School District v. United States, supra, 433 U.S. at 308-09 n.14, 97 S.Ct. at 2741-2742 n.14 (standard deviation analysis). See also D. Baldus & J. Cole, supra at 322-28 (selected methods for calculating tests of statistical significance). For a number of reasons, moreover, we entertain serious doubt that this case lends itself to reliable statistical analysis. First, the promotion of only four cement finishers to foremen for the First National Bank project (or even the entire ten cement finishers employed by the Company as foremen on all of its Little Rock projects from 1973 to 1975) may constitute too small a sample size to establish a prima facie finding of discrimination through statistical analysis. See, e. g., Mayor v. Educational Equality League, supra, 415 U.S. at 621, 94 S.Ct. at 1333 (smallness of sample size is important flaw in straight percentage comparisons); Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975) (“[Statistical evidence derived from an extremely small universe, as in the present case, has little predictive value and must be disregarded.”). See also Shoben, supra at 801 & n.37 (when the sample size is small, a test based" }, { "docid": "16410963", "title": "", "text": ", . . Statistics are equally competent in proving employment discrimination. We caution only that statistics are not irrefutable. They come in an infinite variety and, like any other kind of evidence they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” The court further in Footnote # 20 said: “Consideration such as small sample size may of course detract from the value of such evidence. See e. g. Mayor of Phila. v. Educational Equality League, 415 U.S. 605 [620-621] 94 S.Ct. 1323 [1333], 39 L.Ed.2d 630 (1974)”. In the cited case of Mayor of Philadelphia, the court also issued a caveat with respect to use of statistics where the samples were small saying “Furthermore, the District Court’s concern for the smallness of the sample presented by the 13-member panel was also well founded”. (415 U.S. 621, 94 S.Ct. 1333) . The court in Mayor of Phila. supra also had an observation which is of the greatest importance in the ultimate decision in our case where it said at page 620, 94 S.Ct. at page 1333: “Accordingly this is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded.” The same observation is of great import with respect to this case where it can hardly be argued that all teachers and faculty members in the field of biochemistry can be considered fungible. Rather as has been pointed out the final decision must be based upon the individual qualifications of the person under consideration. If the university had contended itself with mere assertions that it had not been guilty of sex discrimination its evidence would be subject to the same criticism as that made of the company’s evidence in International Brotherhood of Teamsters supra where in Footnote # 24 the court observed “The company’s evidence apart from the showing of recent changes in hiring and promotion policies consisted mainly of general statements that it hired only the best qualified applicants. But ‘affirmations of good faith in" }, { "docid": "1033278", "title": "", "text": "of retirement age. Q. At least, not the ones that continue to be employed here, right? A. I can’t think of one who is 55 years or older, as we speak. Q. Can you think of any who have gotten terminated besides Mr. Pippin who are approaching that age? A. No, sir. However, absent information about what happened to the other senior engineers— whether they were promoted to other positions or terminated to avoid retirement— this weak evidence does not support an inference that Defendant’s stated reasons for termination were pretextual. Similarly, Pippin’s allegation of a statistical pattern of age discrimination— apparently inferred from the fact that fourteen of the nineteen employees terminated in the 2000 RIF were over forty — is not supported by the record. “Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of pretext.” Furr, 82 F.3d at 987. A “plaintiffs statistical evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment by showing disparate treatment between comparable individuals.” Rea, 29 F.3d at 1456 (quotation omitted). Statistical evidence that does not adjust “for the various performance evaluations and departmental rankings of the employees included in the statistical pool” does not compare “similarly situated” employees and therefore “fails to eliminate nondiscriminatory explanations for disparate treatment.” Id. In this case, Pippin’s statistical evidence that fourteen out of nineteen RIF-terminated employees were over forty does not account for any of these different individuals’ circumstances, skills, or prior performances. It represents only a very small sample size, cf. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974) (noting concern with sample size of thirteen), and it fails to tell us what portion of the overall Burlington workforce was over forty in order to compare whether 14/19 is an excessive percentage of over-forty terminations. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1139 (10th Cir. 2000) (“[Statistics concerning employees terminated in a RIF are probative to the extent they suggest that [protected classes of employees] were not treated less favorably than [the privileged" }, { "docid": "22312874", "title": "", "text": "may sustain his burden through introduction of direct evidence, such as statements by the employer that age was the reason for the discharge, or through proof of circumstances from which an inference of age discrimination may be drawn, such as those described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), which are applicable to ADEA cases, Stanojev, supra, 643 F.2d at 919-920. As in race discrimination cases, a plaintiff may through statistical evidence establish a pattern or practice of discharging or failing to promote older employees, from which an inference of age discrimination may be drawn. Stanojev, supra, 643 F.2d at 921. However, “[cjonsiderations such as small sample size may, of course, detract from the value of such evidence, see, e.g., Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 and evidence showing that the figures for the general population might not accurately reflect the pool of qualified applicants would also be relevant.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 327, 340 n. 20, 97 S.Ct. 1843, 1850, 1857 n. 20, 52 L.Ed.2d 396 (1977). Judgment Notwithstanding the Verdict A district court may enter a judgment notwithstanding the verdict when, viewing the evidence in the light most favorable to the non-moving party, “(1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Mattivi v. South African Marine Corp., 618 F.2d 163, 168 (2d Cir.1980). The evidence in support of Haskell’s claim of age discrimination in the present case consisted of (1) a few statements by Kaman and others over a period of 15 years, offered to show that his discharge was age-related, (2) replacement of Has-kell, 57 years of age, by Baldwin, a person four years younger, and in part by Mary" }, { "docid": "7771801", "title": "", "text": "at hand to note that the Court in Christiansburg Garment pointed out that “many defendants in Title VII claims are small- and moderate-size employers for whom the expense of defending even a frivolous claim may become a strong disincentive to the exercise of their legal rights. In short, there are equitable considerations on both sides of this question.” Frivolous suits such as the one brought here do not aid the cause of civil rights. On the contrary, they undermine the legitimate efforts of those bringing legitimate suits, and draw scarce judicial resources away from those cases. III. SUMMARY We hold that the district court’s finding for appellee on the merits was correct. We find the appeal taken by appellant to have been unjustified, and accordingly award costs and attorneys’ fees to appellee. We remand to the district court for calculation of these awards. Affirmed and Remanded. . 42 U.S.C. § 2000e et seq. (1976). . Id. § 1981 (1976). . Plaintiffs Exhibit 3 (emphasis added). . Record at 334. . Record at 174. . To date, however, plaintiffs position has not been filled. . Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974). In this case the Supreme Court, while recognizing that “ [statistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination,” found the percentage comparisons undertaken by the appellate court to be “simplistic,” and to “lack real meaning in the context of this case.” Id. at 620, 94 S.Ct. at 1333. The Supreme Court pointed out in Educational Equality League that “the District Court’s concern for the smallness of the sample presented by the 13-member Panel” challenged as being discriminatorily chosen was “well founded,” and that the percentage comparisons offered “were correctly rejected by the District Court as meaningless.” Id. at 621, 94 S.Ct. at 1333. If the 13-member Panel was too small in Educational Equality League, then for similar reasons we think it reasonable to conclude that the pool of 14 employees discharged over a three-year period is" }, { "docid": "21999767", "title": "", "text": "in employment; thus, the failure to hire such groups in percentages related to their representation in the population justifies shifting the burden to the party most familiar with the nature of the job, the qualifications needed for the job, and the relationship of the hiring procedures to those qualifications. Of course, there are areas of alleged discrimination in which it would be unreasonable to draw even a threshold inference of discrimination. The defendants seize on such cases, for example, Mayor of Philadelphia v. Educational Quality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1973), in an effort to demonstrate that threshold inferences can never be drawn from population data. In Mayor of Philadelphia, the plaintiffs attempted to show discrimination in the selection of the thirteen members of a body called the Educational Nominating Panel. The function of the panel was to seek out candidates for the Philadelphia Board of Education and to recommend nominees to the Mayor of Philadelphia. Under the terms of the city charter, only four of the panel members were to be drawn from the population at large. The remaining members of the panel were required to be selected from the highest ranking officers of nine different categories of city-wide organizations, one from each category. Clearly, resort to general population statistics in the Mayor of Philadelphia case was inappropriate. As the Court pointed out: [T]his is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded. At least with regard to nine seats on the Panel and assuming, arguendo, that percentage comparisons are meaningful in a case involving discretionary appointments, the relevant universe for comparison purposes consists of the highest ranking officers of the categories of organizations and institutions specified in the city charter, not the population at large. . . . Furthermore, the District Court’s concern for the smallness of the sample presented by the 13-member Panel was also well founded. Id. at 620-21, 94 S.Ct. at 1333, 39 L.Ed.2d at 644. The Mayor of Philadelphia" }, { "docid": "23337456", "title": "", "text": "already tenured in 1985, the one faculty member who received tenure in 1985, the first faculty member to be tenured after 1985, and Fisher herself, together with the age of each person at the time that person was considered for tenure: Fisher 53 Norrod 44 Mehaffey 39 Hemmes 38 Suter 38 Schlessman 35 Williams 33 Johnson 44 Greenwood 48 Fisher, 852 F.Supp. at 1219. This table does not amount to proof sufficient to support a finding of discrimination under the ADEA. Nothing in plaintiffs list indicates that Vassar had a policy or practice of denying tenure to older candidates. Plaintiff has not shown that Vassar discriminates on the basis of age; she has only shown that she was the oldest candidate in the biology department to have been considered for tenure. Since few candidates for tenure have had an eight year break in their careers, it is unsurprising (and not at all sinister) that most of the candidates to be considered for tenure in the biology department were in their late 30s and early 40s. We would be reluctant in any event to draw conclusions from a sample of only eight faculty members out of a College-wide pool in excess of 100 faculty members who were eligible for tenure between 1972 and 1985. This circuit and others “have eonsis-tently rejected similar statistical samples as too small to be meaningful.” See Haskell, 743 F.2d at 121 (ten terminations over eleven years too few to be statistically reliable); see also Pace v. Southern Railway Sys., 701 F.2d 1383, 1389 (11th Cir.) (twelve employment decisions over twelve years too few to be meaningful), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983); Coble v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721, 723 (8th Cir.1982) (15 employment decisions over eight years “too small to support any inference of discriminatory pattern or practice”); Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir.1977) (eight employment decisions over two years too few to be significant). The district court’s conclusion that the evidence presented by plaintiff amounted to sufficient proof to" } ]

[ { "docid": "22818103", "title": "", "text": "the objectors and liberally in favor of the bankrupt. In re Leichter, 3 Cir., 1952, 197 F.2d 955. The referee was correct in finding that the objectors had failed to prove their case concerning the alleged fraudulent concealment or disposition of assets. Appellees, and the court below, make much of the fact that the wife paid nothing for the assets of the business; the objectors did not make the slightest showing, however, that there were any assets transferred. The “good will” of a continuing business, divorced from any physical assets, is exactly the type of asset which the Bankruptcy Act leaves with the bankrupt to continue his economic career. The fact that this asset, of no monetary value when separated from the bankrupt’s future business prospects, was “transferred” to the wife’s corporation, which in turn “employed” Tabibian, is not significant. Such a device might be used in fraud of creditors if employed to shelter, within the corporation, the bankrupt’s pre-petition earnings. However, there is no evidence that the wife’s corporation had any earnings or profits prior to Tabibian’s petition. The case of In re Reidy, D.C.D.N.J.1935, 12 F.Supp. 370, relied upon by the District Court, is in-apposite. In that case the bankrupt had incorporated his business nine months before bankruptcy and had actively operated it as a corporation for a few months prior to the filing of an individual petition. Unlike our case, the corporation in Reidy had, at the time of petition, substantial assets; the court mentions at least $800 in accounts receivable. The bankrupt failed to declare on his schedule of assets either his shareholder’s interest in the newly formed corporation or the actual assets of the corporation. There is, similarly, insufficient evidence to support a finding of fraudulent transfer or concealment of the motor vehicles. The bankrupt’s testimony that the truck was sold for $300 to finance his bankruptcy has not been controverted. Such a transaction is not a surprising one for a man in financial difficulties. Although Tabibian’s explanation of the repossession of his station wagon is rendered somewhat suspect by its lack of documentary substantiation," } ]

[ { "docid": "17887276", "title": "", "text": "the claims were provable because, even if they were, we conclude that they would not be dischargeable under section 17(a)(2) of the former Act, which provides: a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as.... (2) are liabilities for obtaining money or property by false pretenses or false representations.... 11 U.S.C. § 35 (repealed 1978). Courts have consistently held that for this section to bar discharge, the fraud must be of a “type involving moral turpitude or intentional fraud.” In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975). Judge Graves concluded that the Semaans’ claims were within section 17(a)(2) and were therefore not dischargeable. Allied contends that this determination exceeded Judge Graves’ authority as a successor judge. Allied maintains that Judge Hackett’s liability determinations do not support a conclusion of “moral turpitude or intentional fraud,” even if they support a finding of intentional misrepresentation. Consequently, says Allied, Judge Graves’ conclusion that the Semaans’ claims were not dischargeable went beyond Judge Hackett’s findings and constituted an abuse of discretion under Fed.R.Civ.P. 63 and a violation of this court’s mandate in its previous opinion. We reject this reasoning because, as discussed above, we conclude that Judge Hackett’s liability findings supported a conclusion of fraud of the type necessary to satisfy the requirements of section 17(a)(2). Judge Hackett determined that Allied had intentionally deceived the Semaans. Such intentional deception is exactly the type of fraud covered by the bar to dischargeability found in section 17(a)(2). That such deception takes the form of an intentional nondisclosure of a material fact or an implied representation makes no difference. See, e.g., In re Shacket, 26 B.R. 930, 932 (Bankr.E.D.Mich.1983); In re Newmark, 20 B.R. 842, 858 (Bankr.E.D.N.Y.1982). Accordingly, Judge Graves did not err in concluding that, under section 17(a)(2) of the former Bankruptcy Act, the Semaans’ judgments are not dischargeable. VI. The final issue that must be addressed is whether the lower court erred in dismissing Allied’s counterclaims against Albert Semaan and Thomas Simaan on personal guaranties made on corporate" }, { "docid": "22628664", "title": "", "text": "concluded that the judgment debt of the Mann’s was not discharge-able. We must determine not only that the bankruptcy judge applied the correct legal standard to the facts before him but also that his application was not clearly erroneous. We hold that his findings of fact were not clearly erroneous. A state court judgment based on fraud is sufficient to establish a prima facie case that it represents a debt nondischargeable under § 17(a)(2). As we have discussed, see pp. 653-654 supra, the bankrupt is entitled to rebut this prima facie case, but the conclusion that the Houtmans failed to do so is not clearly erroneous. In his testimony before the bankruptcy judge, Mr. Houtman admitted that his testimony there duplicated his testimony in state court, which was obviously disbelieved. His testimony that he lost in state court because his lawyer failed to prepare adequately for trial due to the lawyer’s confidence in a statute-of-limitations defense is conclusory, uncorroborated by his attorney, and belied by the bankrupts’ failure to introduce any new evidence before the bankruptcy judge. Under the circumstances, the judge was not required to find that the state court judgment was unreliable, and his finding of fact that the Houtmans’ “obligation is nondischargeable because of the finding of fraud” in state court is supported by the evidence. III. The Meaning of Scienter Under Section 17(a)(2). There remains but one possible error of law by the bankruptcy judge which we should consider. That is whether the type of fraud on which the judgment debt rests is that described in section 17(a)(2) of the Bankruptcy Act. We have adopted a five-part test for determining when a debt is nondischargeable under this provision. That test is: “(1) the debtor made the representations; (2) That at the time he knew they were false; (3) That he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations; (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.” (Italics supplied). In re Taylor, 514 F.2d" }, { "docid": "7066652", "title": "", "text": "§ 17(a)(2) of the Act. Rule 810 of the Bankruptcy Rules states that the District Judge shall accept the referee’s findings of fact unless they are clearly erroneous. But, the District Judge is “free to make his own conclusions of law, and to draw inferences or deductions, different from the referee’s, on documentary, undisputed or stipulated evidence.” 13 Collier, Bankruptcy ¶ 810.05 (14th ed.). Finding no clear error as to either fact or law, we affirm the decision of the Bankruptcy Judge. As correctly pointed out by the Bankruptcy Judge, “the burden of proof is upon the creditor who claims that his duly scheduled debt is excepted from the operation of the discharge in Bankruptcy because of the false representation or pretense,” citing 1A Collier, Bankruptcy, at 1648 (14th ed.). It is established law that the false representation or false pretense claimed under § 17(a)(2) of the Act must be of a kind involving “moral turpitude or intentional wrong;” fraud implied in law is insufficient. 1A Collier, supra, at 1634; Swanson Petroleum Corp. v. Cumberland, 184 Neb. 323, 167 N.W.2d 391 (1969); Friendly Finance Co. v. Stover, 109 Ga.App. 21, 134 S.E.2d 837 (1964). “Actual fraud,” as opposed to fraud implied in law or “constructive fraud,” requires intentional wrong or moral turpitude, Pelton’s Executor v. Dumas, 117 Vt. 13, 17, 84 A.2d 408 (1951) and it is only this type and degree of fraud that may operate to avoid a discharge in bankruptcy. See City National Bank of Baton Rouge v. Knight, 421 F.Supp. 1387 (M.D.La.1976); In re Taylor, 514 F.2d 1370 (9th Cir. 1975). [T]o bar a discharge, the party alleging fraud must meet the requirements of positive fraud. That is, the alleged fraudulent representations must have been made with an intent to defraud, and the creditor must have relied on the representation in acting to his prejudice. In re Dolnick, 374 F.Supp. 84, 90 (N.D.Ill.1974). On the basis of the findings of fact made by the Bankruptcy Judge, there is simply insufficient evidence that defendant intentionally misled .the plaintiff regarding the likelihood of the checks being honored to" }, { "docid": "13571665", "title": "", "text": "corporation was held to be nondischargeable in bankruptcy. The Second Circuit stated that the bankrupt had knowingly committed a breach of duty as a fiduciary which was an appropriation within section 17. The bankrupt was charged with ' knowledge that the corporation was insolvent and knowledge of the law that prohibited preferential payments, although nothing was said as to such knowledge. In re Hammond, 98 F.2d 703, 705-06 (2d Cir.), cert. denied, 305 U.S. 646, 59 S.Ct. 149, 83 L.Ed. 418 (1938). . Although the conclusions of the District Court and the Bankruptcy Court, that Cashway had conceded that Johnson was not guilty of any intentional fraud, are not probative in light of our holding, we have read the entire record in this case and there is no concession by Cashway that there was no intentional defalcation, misappropriation or bad faith on the part of Johnson. Cashway merely argued that it was not required to show bad faith. Cash-way’s complaint in the Bankruptcy Court states that the debtor knowingly converted and misappropriated funds held in trust and that these acts constituted fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity. Complaint 11, 12 (App. 7-8). Although the dissent adopts the opinion of the District Court, that Cashway conceded that Johnson was not guilty of any intentional fraud, it does not point out where the concession was made. It is not possible to point to specific portions of the record to establish a negative but if such a concession appears on the record, it should be easy for the dissent to identify where and how it was made. GEORGE CLIFTON EDWARDS, Jr., Chief Judge, dissenting. In this case Judge Nims, as Bankruptcy Judge in Grand Rapids, Michigan, found that the debt at issue was dischargeable in bankruptcy and Judge Gibson, as District Judge, agreed. Both held that the bankrupt was not guilty of intentional fraud. Since I find no basis in this record for holding this finding to be clearly erroneous or in any way violative of either federal or Michigan law, I dissent from the majority opinion. The" }, { "docid": "22776967", "title": "", "text": "Cir. 1978); In re Blessing, 442 F.Supp. 68, 70 (S.D.Ind.1977). In addition, the courts require a showing of fraudulent intent or moral turpitude on the part of the debtor, i. e., an intent to deceive. In re McMillan, 579 F.2d 289, 292 (3d Cir. 1978); In re Houtman, supra; In re Blessing, supra; In re Dolnick, 374 F.Supp. 84, 90 (N.D. Ill.1974). These questions of knowing or reckless falsehood and intent to deceive are questions of fact, In re Nelson, 561 F.2d 1342, 1347 (9th Cir. 1977), and the bankruptcy court’s findings on those issues are conclusive unless clearly erroneous, Bankr. Rule 810; In re Land Investors, Inc., 544 F.2d 925, 933 (7th Cir. 1976). From the evidence produced at the hearing in the bankruptcy court it is clear that Matera’s statements about the profitability of his bakery were grossly reckless at a minimum. Moreover, the fact that Matera deposited $4,000 in his personal account the day after the $5,000 loan in question, coupled with his various lies to induce both a later loan of $500 and the transfer to Carini of another business in exchange for forgiving part of the loan, justify the finding of intent to deceive or moral turpitude. Indeed, where, as here, a person knowingly or recklessly makes a false representation which the person knows or should know, will induce another to make a loan, intent to deceive may logically be inferred. In re Nelson, supra, 561 F.2d at 1346-1347. Thus, it cannot be said that the finding that the loan of $5,000 was “obtained by false representations” within the meaning of § 17(a)(2) is clearly erroneous. Furthermore, once a creditor establishes a prima facie case of fraud, the burden of coming forward with some proof or explanation of the alleged fraud shifts to the debtor. In re Taylor, 514 F.2d 1370, 1373 (9th Cir. 1975). The courts have given great weight to the testimony of the parties and the opportunity of the bankruptcy judge to assess their credibility. In re Taylor, id.; In re Nelson, supra. Here, Carini testified at length and the bankruptcy judge" }, { "docid": "11814052", "title": "", "text": "a referee under 11 U.S.C.A. § 11, is qualified by General Order in Bankruptcy No. 47, following 11 U.S.C.A. § 53, which provides that “ * * * the report of a referee * * * shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous, * * *» It seems to be well settled, however, that General Order 47 is directed to findings of fact by the referee and not to legal conclusions to be drawn therefrom. Judge Major, speaking for our court, reviewed this question in Namoff v. Hyland Electrical Supply Company, 7 Cir., 275 F.2d 14, 16, cert. denied, 364 U.S. 818, 81 S.Ct. 51, 5 L.Ed.2d 49 (1960). And, in Namoff, we cited with approval the holding in Stewart v. Ganey, 5 Cir., 116 F.2d 1010, 1013 (1941). There the issue was whether there had been a concealment of assets by the bankrupt. The court held this to be “an ultimate question of fact” without the strictures of General Order 47 being binding on the district court in reviewing the referee’s finding. So, in the case at bar, in reviewing the referee’s Finding 8, supra, that part referring to evidentiary facts, comes within the clearly erroneous rule. However, if the ultimate finding or legal effect to be drawn therefrom is that thereby bankrupts hid and secreted assets with the purpose and intent to defraud and deceive creditors, such evidentiary facts being undisputed, this would appear to be a conclusion to which the clearly erroneous rule has no application on review. However, be that as it may, for the purposes of this opinion, if Finding 8 in its entirety be a finding of fact, it is clearly erroneous. If it be a reviewable conclusion, the legal effect given by the referee is incorrect. Finally, it is well established that Section 14(c) of the Bankruptcy Act, supra, must be liberally construed in favor of the bankrupts and the burden of proof is on the objecting creditor, not on the bankrupts. There must be proof of" }, { "docid": "7066653", "title": "", "text": "184 Neb. 323, 167 N.W.2d 391 (1969); Friendly Finance Co. v. Stover, 109 Ga.App. 21, 134 S.E.2d 837 (1964). “Actual fraud,” as opposed to fraud implied in law or “constructive fraud,” requires intentional wrong or moral turpitude, Pelton’s Executor v. Dumas, 117 Vt. 13, 17, 84 A.2d 408 (1951) and it is only this type and degree of fraud that may operate to avoid a discharge in bankruptcy. See City National Bank of Baton Rouge v. Knight, 421 F.Supp. 1387 (M.D.La.1976); In re Taylor, 514 F.2d 1370 (9th Cir. 1975). [T]o bar a discharge, the party alleging fraud must meet the requirements of positive fraud. That is, the alleged fraudulent representations must have been made with an intent to defraud, and the creditor must have relied on the representation in acting to his prejudice. In re Dolnick, 374 F.Supp. 84, 90 (N.D.Ill.1974). On the basis of the findings of fact made by the Bankruptcy Judge, there is simply insufficient evidence that defendant intentionally misled .the plaintiff regarding the likelihood of the checks being honored to constitute positive fraud. Further, plaintiff did not rely on defendant’s promises to his detriment and cannot now support the claim that he was the unsus pecting victim of positive fraud. After plaintiff discovered that the first check was dishonored he was on notice as to the questionable state of defendant’s checking account, and could easily have avoided being taken advantage of. While delivery of the toilets preceded tender of the check, defendant, according to his own testimony, was still in a position to remove the toilets after he learned from the bank that the first check would be dishonored. We are in agreement with the Bankruptcy Judge in his conclusion that [w]ere [plaintiff] sincere in its assertion that the deposit of $2,275.00 was to be met[,] ordinary prudence would have dictated the production of cash or a certified check before delivery of the units. The same reasoning applies to its claim that it would have removed the toilets if the check for $4,550.00 were not good. When it received this check the contract period had" }, { "docid": "17887275", "title": "", "text": "contention, that Judge Hackett did find Allied liable for intentional misrepresentation. That Judge Graves employed embellishing language in referring to Judge Hackett’s finding does not alter the fact that he readopted the legally substantive previous finding that Allied intentionally misrepresented to the Semaans the gross profit figures. This finding was all that was needed to warrant an award of exemplary damages. We therefore conclude that Judge Graves did not violate our mandate and did not abuse his discretion under Rule 63 of the Federal Rules of Civil Procedure. V. We next consider whether the bankruptcy court erred in concluding that the Se-maans’ judgments against Allied were not dischargeable under Allied’s reorganization plan. Allied argues that the judgments are dischargeable because they are considered unsecured claims under its reorganization plan. The Semaans argue that their claims are not dischargeable because they are not provable under the former Bankruptcy Act, 11 U.S.C. § 1, et seq., and, even if they were provable, they are not dischargeable under section 17 of that Act. We need not decide whether the claims were provable because, even if they were, we conclude that they would not be dischargeable under section 17(a)(2) of the former Act, which provides: a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as.... (2) are liabilities for obtaining money or property by false pretenses or false representations.... 11 U.S.C. § 35 (repealed 1978). Courts have consistently held that for this section to bar discharge, the fraud must be of a “type involving moral turpitude or intentional fraud.” In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975). Judge Graves concluded that the Semaans’ claims were within section 17(a)(2) and were therefore not dischargeable. Allied contends that this determination exceeded Judge Graves’ authority as a successor judge. Allied maintains that Judge Hackett’s liability determinations do not support a conclusion of “moral turpitude or intentional fraud,” even if they support a finding of intentional misrepresentation. Consequently, says Allied, Judge Graves’ conclusion that the Semaans’ claims were not dischargeable went beyond" }, { "docid": "22776968", "title": "", "text": "$500 and the transfer to Carini of another business in exchange for forgiving part of the loan, justify the finding of intent to deceive or moral turpitude. Indeed, where, as here, a person knowingly or recklessly makes a false representation which the person knows or should know, will induce another to make a loan, intent to deceive may logically be inferred. In re Nelson, supra, 561 F.2d at 1346-1347. Thus, it cannot be said that the finding that the loan of $5,000 was “obtained by false representations” within the meaning of § 17(a)(2) is clearly erroneous. Furthermore, once a creditor establishes a prima facie case of fraud, the burden of coming forward with some proof or explanation of the alleged fraud shifts to the debtor. In re Taylor, 514 F.2d 1370, 1373 (9th Cir. 1975). The courts have given great weight to the testimony of the parties and the opportunity of the bankruptcy judge to assess their credibility. In re Taylor, id.; In re Nelson, supra. Here, Carini testified at length and the bankruptcy judge obviously believed his testimony. Matera, in contrast, declined to testify at all. He presented no evidence on the issues of knowing or reckless falsehood and intent to deceive. In such circumstances a reviewing court may not lightly overturn the findings of the bankruptcy court. Bankr. Rule 810; In re Taylor, supra. Matera next contends, correctly, that § 17(a)(2) requires a finding that the creditor actually relied upon the false representations. In re McMillan, supra, 579 F.2d at 292 n.5; In re Houtman, supra, 568 F.2d at 655. And of course such reliance must be reasonable. But here again it cannot be said that the court committed clear error in finding that Carini acted reasonably in relying on Matera’s representations. Matera’s arguments on this point rely almost entirely upon Carini’s failure to make inquiries and examine records after the loan had been made. The reasonableness of appellee’s conduct after turning over his money is, however, irrelevant to the reasonableness of his reliance/ on the representations which induced the loan in the first place. Taking into account," }, { "docid": "22395711", "title": "", "text": "the same rule of strict, literal construction governing all other exceptions to the Bankruptcy Act. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). Courts have consistently held that in order for § 17(a)(2) to bar a discharge, the party alleging fraud must prove actual or positive fraud, not merely fraud implied by law. In re Dolnick, 374 F.Supp. 84, 90 (N.D. 111.1974); In re Adams, 368 F.Supp. 80 (D.S.D.1973); United States v. Syros, 254 F.Supp. 195, 198 (E.D.Mo.1966); 1A Collier on Bankruptcy § 17. (S). This fraud is the type involving moral turpitude or intentional wrong, and thus there can be no mere imputation of bad faith. According to Sweet v. Ritter Finance Co., 263 F.Supp. 540, 543 (W.D.Va. 1967), the objecting party’s burden of proof consists of five elements: “. . . (1) the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations, and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.” [Emphasis supplied.] While these authorities are not controlling, they are persuasive and, in our opinion, properly construe Section 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2). Cases such as Morimura, Arai & Co. v. Taback, 279 U.S. 24, 49 S.Ct. 212, 73 L.Ed. 586 (1929), on which appellant relies, construe former § 14(b) of the Bankruptcy Act, rather than § 17(a)(2), which is before us. Beyond that, the Master in Taback made no findings of fact, a failure which the Supreme Court recognized and then went on to make its own examination of the facts. We add that the “clearly erroneous” rule was not in effect at the time of the Taback decision. Other cases cited by appellant are no more in point. Accordingly, we hold the burden of proof was on appellant to show that appellee intentionally and purposefully attempted to deceive appellant in obtaining the loan. Although a few cases" }, { "docid": "7066651", "title": "", "text": "plaintiff. Upon receipt of the check, plaintiff called the drawee bank and was informed that there were not sufficient funds to cover it. Upon presentment, the check was returned for insufficient funds. Nevertheless, plaintiff did cause the toilets to be delivered to the defendant for its use during the archery tournament. During a dispute at the scene of the tournament over the bad check, defendant, at the suggestion of the sheriff, issued a second cheek, this time for the full contract price of $4,550. This check, too, was subsequently returned for insufficient funds. At the hearing before the Bankruptcy Judge, plaintiff attempted to establish that the procurement of the toilets by the defendants, based upon representations that the checks they issued would be honored, while they knew that they could not be honored, amounted to the obtaining of property by false pretenses or false representations. The Bankruptcy Judge found that the false representations here did not amount to the kind of fraud which is required in order to bring the case within the ambit of § 17(a)(2) of the Act. Rule 810 of the Bankruptcy Rules states that the District Judge shall accept the referee’s findings of fact unless they are clearly erroneous. But, the District Judge is “free to make his own conclusions of law, and to draw inferences or deductions, different from the referee’s, on documentary, undisputed or stipulated evidence.” 13 Collier, Bankruptcy ¶ 810.05 (14th ed.). Finding no clear error as to either fact or law, we affirm the decision of the Bankruptcy Judge. As correctly pointed out by the Bankruptcy Judge, “the burden of proof is upon the creditor who claims that his duly scheduled debt is excepted from the operation of the discharge in Bankruptcy because of the false representation or pretense,” citing 1A Collier, Bankruptcy, at 1648 (14th ed.). It is established law that the false representation or false pretense claimed under § 17(a)(2) of the Act must be of a kind involving “moral turpitude or intentional wrong;” fraud implied in law is insufficient. 1A Collier, supra, at 1634; Swanson Petroleum Corp. v. Cumberland," }, { "docid": "13571666", "title": "", "text": "trust and that these acts constituted fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity. Complaint 11, 12 (App. 7-8). Although the dissent adopts the opinion of the District Court, that Cashway conceded that Johnson was not guilty of any intentional fraud, it does not point out where the concession was made. It is not possible to point to specific portions of the record to establish a negative but if such a concession appears on the record, it should be easy for the dissent to identify where and how it was made. GEORGE CLIFTON EDWARDS, Jr., Chief Judge, dissenting. In this case Judge Nims, as Bankruptcy Judge in Grand Rapids, Michigan, found that the debt at issue was dischargeable in bankruptcy and Judge Gibson, as District Judge, agreed. Both held that the bankrupt was not guilty of intentional fraud. Since I find no basis in this record for holding this finding to be clearly erroneous or in any way violative of either federal or Michigan law, I dissent from the majority opinion. The reasons for my conclusion have been ably set forth in Judge Gibson’s opinion in this case as follows: ■ This matter has come before this Court as an appeal filed by the plaintiff seeking review of the July 24,1980, opinion and order entered by the Honorable David E. Nims, Jr., United States Bankruptcy Judge, discharging a debt which the appellant here claims was not dischargeable under Section 17(a)(4) of the old Bankruptcy Act, 11 U.S.C. § 35(a)(4), 30 Stat. 550 (1898), as amended. It is clear that this appeal is governed by the pre-1979 version of the Bankruptcy Act. Pub.L. 95-598, Title IV, §§ 403(a), 405, 92 Stat. 2683 (1978). Accordingly, all authorities cited in this opinion will relate to the old Bankruptcy Act, 11 U.S.C. §§ 1-1255 (1898), as amended. In considering this appeal, the Court cannot disturb or set aside Judge Nims’s findings of fact unless they are clearly erroneous. In re Albert-Harris, Inc., 313 F.2d 447 (6th Cir. 1963); Cle~Ware Industries, Inc. v. Sokolsky, 493 F.2d 863 (6th Cir. 1974), cert. denied" }, { "docid": "17410701", "title": "", "text": "known or recklessly disregarded the fact that the check or order was drawn on an account that did not exist, was drawn on an account with insufficient funds or was otherwise worthless.” Wis. Stat. § 943.245. Although the Plaintiffs alleged that the Debtor violated these statutes and obtained default judgments from the Circuit Court for Milwaukee County, proving fraud to except a debt from a bankruptcy discharge requires more. Fraud, in the context of § 523(a)(2)(A), means “positive fraud involving moral turpitude.” In re Blatz, 37 B.R. 401, 404 (Bankr.E.D.Wis.1984). Fraudulent intent cannot be established solely by proof that the debtor violated the Wisconsin NSF check statute. Addressing Wis. Stat. § 943.24 in In re Anderson, Bankruptcy Judge Martin stated: “Colliers supports the view of [Western District of Wisconsin Bankruptcy] Judge Bessman arguing that § 523(a)(2)(A) requires a finding of actual fraud other than a statutorily created fraud in order to have the moral turpitude required to bar discharge.” 10 B.R. 296, 298 (Bankr.W.D.Wis.1981) (emphasis supplied). See also Check Control v. Anderson (In re Anderson), 181 B.R. 943, 948 (Bankr.D.Minn.1995) (“[F]raud imputed by a statutory provision — such as Minn.Stat. § 609.535—is not sufficient to establish nondischargeability.”) The small claims court default judgments that the Debtor violated the Wisconsin NSF Statutes do not constitute pri-ma facie proof of the Debtor’s fraudulent intent. The only relevant evidence provided by the Plaintiffs are the four checks themselves, totaling approximately $100. At some point, the judgments and checks themselves may be sufficient to make a prima facie case. For example, in Check Control, supra, the debtor presented some 59 checks knowing that he did not have sufficient funds to cover them. However, in this case, without some supporting testimony or other evidence about the Debtor’s circumstances at the time she presented the four checks to demonstrate that she knew that the checks would not be honored or that she otherwise intended to obtain groceries without paying for them, the Plaintiffs cannot sustain their burden of proof under § 523(a)(2)(A). The court is not unsympathetic to the Plaintiffs’ plight as clearly these grocery stores" }, { "docid": "22395710", "title": "", "text": "to its being listed on an area credit clearance exchange different from their own. After a full evidentiary hearing, the referee found £hat the evidence did not sustain appellant’s burden of proving that appellee intended to deceive appellant in obtaining the loan. Accordingly, the debt to appellant was ordered discharged. ISSUES ON APPEAL I. Did the referee apply to the evidence the proper burden of proof? II. Did the referee err in finding that appellant failed to sustain its burden of proof? I. Section 17(a) of the Bankruptcy Act, 11 U.S.C. § 35(a), lists certain debts not affected by a discharge, including “(2) liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his [bankrupt’s] financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive . . . [, 2] This section has traditionally been subject to the same rule of strict, literal construction governing all other exceptions to the Bankruptcy Act. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). Courts have consistently held that in order for § 17(a)(2) to bar a discharge, the party alleging fraud must prove actual or positive fraud, not merely fraud implied by law. In re Dolnick, 374 F.Supp. 84, 90 (N.D. 111.1974); In re Adams, 368 F.Supp. 80 (D.S.D.1973); United States v. Syros, 254 F.Supp. 195, 198 (E.D.Mo.1966); 1A Collier on Bankruptcy § 17. (S). This fraud is the type involving moral turpitude or intentional wrong, and thus there can be no mere imputation of bad faith. According to Sweet v. Ritter Finance Co., 263 F.Supp. 540, 543 (W.D.Va. 1967), the objecting party’s burden of proof consists of five elements: “. . . (1) the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such" }, { "docid": "7066654", "title": "", "text": "constitute positive fraud. Further, plaintiff did not rely on defendant’s promises to his detriment and cannot now support the claim that he was the unsus pecting victim of positive fraud. After plaintiff discovered that the first check was dishonored he was on notice as to the questionable state of defendant’s checking account, and could easily have avoided being taken advantage of. While delivery of the toilets preceded tender of the check, defendant, according to his own testimony, was still in a position to remove the toilets after he learned from the bank that the first check would be dishonored. We are in agreement with the Bankruptcy Judge in his conclusion that [w]ere [plaintiff] sincere in its assertion that the deposit of $2,275.00 was to be met[,] ordinary prudence would have dictated the production of cash or a certified check before delivery of the units. The same reasoning applies to its claim that it would have removed the toilets if the check for $4,550.00 were not good. When it received this check the contract period had practically expired and a fair inference is that it had no intention of removing them at that late date. While in no way condoning the acts of the defendant at the time of these transactions, the Court is unable to find any basis for upsetting the holding of the Bankruptcy Judge. This is simply not a case of intentional fraud or moral turpitude. Even if there were some doubt as to the type of fraud that obtained here, plaintiff’s burden would still be a difficult one. It is not surprising, in light of the entire thrust of the Bankruptcy Act, that section 17 should be construed liberally in favor of the bankrupt. In re Tabibian, 289 F.2d 793, 795 (2d Cir. 1961); In re Dolnick, supra at 90. The Bankruptcy Judge’s findings of fact are not clearly erroneous, nor is his application’ of the law to those facts incorrect. Finding no error, the judgment of the Bankruptcy Judge is AFFIRMED. . Tr., at 14. . Opinion of Bankruptcy Judge, at 7." }, { "docid": "23491396", "title": "", "text": "nondis-chargeability. Wright appeals from the order of affirmance on rehearing. We agree with both the bankruptcy judge and the district court that the superior court found Wright to have made material representations which were false. But this does not amount to a “false representation” within the meaning of section 17a(2). There must also be a showing of fraudulent intent or reckless disregard for the truth tantamount to wilful misrepresentation. United States v. Syros, 254 F.Supp. 195, 198 (E.D.Mo.1966); Ruegsegger v. McCarley, 262 Or. 157, 163, 496 P.2d 214, 217 (1972). Prior decisions unanimously require proof of actual fraud involving moral turpitude. E. g., In re Blakesley, 27 F.Supp. 980, 981 (W.D.Mo.1939); Hisey v. Lewis-Gale Hosp., Inc., 27 F.Supp. 20, 23 (W.D.Va.1939) (dictum). In order for Section 17, sub. a(2) to bar a discharge, the party alleging fraud must meet the requirements of proving positive fraud. That is, the alleged fraudulent representations must have been made with an intent to deceive and defraud, and the creditor must have relied on the representations in acting to his prejudice. In re Dolnick, 374 F.Supp. 84, 90 (N.D. Ill.1974) (citations omitted); accord, United States v. Syros, supra, 254 F.Supp. at 198; Friendly Fin. Co. v. Stover, 109 Ga.App. 21, 22, 134 S.E.2d 837, 839 (1964); Peoples Fin. and Thrift Co. v. Doman, 27 Utah 2d 404, 407, 497 P.2d 17, 19 (1972). The superior court judgment was not based upon a finding of fraud but upon a finding of illegal contract. See generally 6A A. Corbin, Contracts §§ 1373, 1374, 1510, 1514 (1962). Indeed, the superior court specifically found no fraudulent intent. The word “fraudulently” was stricken from Lubinko’s proposed finding of fact IV, as was the language, “and [the representations] were known by said defendants to be false, when the same were made.” Furthermore, the court stated in its Memorandum of Decision: “The Court finds that the allegations of fraud are not established ..” Finally, in a letter to counsel for Lubinko explaining the modifications to the proposed finding of fact, the superior court judge stated: The Court . . . did not" }, { "docid": "22776966", "title": "", "text": "PER CURIAM, The bankrupt, Giuseppe Matera, appeals from a judgment of the district court which affirmed a bankruptcy court holding that a loan made to him by appellee Peter Carini was induced by false representations and is, therefore, a non-dischargeable debt under Bankruptcy Act § 17(a)(2), 11 U.S.C. § 35(a)(2). The facts surrounding the loan transaction are set out in the opinion of the district court, In re Matera, 436 F.Supp. 947 (E.D.Wis.1977), and need not be repeated here. On this appeal, Matera contends: (1) that there was no proof of moral turpitude in making the false representations; (2) that Carini’s reliance on the representations was not reasonable; and (3) that Carini waived his claim, or is estopped from asserting it. As the district court held and Mat-era argues here, § 17(a)(2) requires that for a debt to be nondischargeable the bankrupt must have obtained the money or property through representations known to be false or made with reckless disregard for the truth amounting to willful misrepresentation. In re Houtman, 568 F.2d 651, 655—656 (9th Cir. 1978); In re Blessing, 442 F.Supp. 68, 70 (S.D.Ind.1977). In addition, the courts require a showing of fraudulent intent or moral turpitude on the part of the debtor, i. e., an intent to deceive. In re McMillan, 579 F.2d 289, 292 (3d Cir. 1978); In re Houtman, supra; In re Blessing, supra; In re Dolnick, 374 F.Supp. 84, 90 (N.D. Ill.1974). These questions of knowing or reckless falsehood and intent to deceive are questions of fact, In re Nelson, 561 F.2d 1342, 1347 (9th Cir. 1977), and the bankruptcy court’s findings on those issues are conclusive unless clearly erroneous, Bankr. Rule 810; In re Land Investors, Inc., 544 F.2d 925, 933 (7th Cir. 1976). From the evidence produced at the hearing in the bankruptcy court it is clear that Matera’s statements about the profitability of his bakery were grossly reckless at a minimum. Moreover, the fact that Matera deposited $4,000 in his personal account the day after the $5,000 loan in question, coupled with his various lies to induce both a later loan of" }, { "docid": "11814053", "title": "", "text": "General Order 47 being binding on the district court in reviewing the referee’s finding. So, in the case at bar, in reviewing the referee’s Finding 8, supra, that part referring to evidentiary facts, comes within the clearly erroneous rule. However, if the ultimate finding or legal effect to be drawn therefrom is that thereby bankrupts hid and secreted assets with the purpose and intent to defraud and deceive creditors, such evidentiary facts being undisputed, this would appear to be a conclusion to which the clearly erroneous rule has no application on review. However, be that as it may, for the purposes of this opinion, if Finding 8 in its entirety be a finding of fact, it is clearly erroneous. If it be a reviewable conclusion, the legal effect given by the referee is incorrect. Finally, it is well established that Section 14(c) of the Bankruptcy Act, supra, must be liberally construed in favor of the bankrupts and the burden of proof is on the objecting creditor, not on the bankrupts. There must be proof of actual intent to defraud such creditor. In re Schweizer, supra, 271 F.2d at 97. Appellee, the objecting creditor, has not carried its burden, as shown by the record in this case. The learned district court gave extensive consideration to the question of whether the status of the real estate held by bankrupts as tenants by the entireties caused its transfer to be exempt from the claims of creditors, thereby affording no basis for a denial of a discharge in bankruptcy. In light of our disposition of this appeal on other grounds, we do not reach or pass upon this interesting inquiry. For' the foregoing reasons, the orders of the district court appealed from are reversed. The discharges from bankruptcy should issue. These causes are remanded to the district court with directions to grant a discharge in bankruptcy to each appellant. Reversed and remanded. . Section 14(c) (4) of the Bankruptcy Act, 11 U.S.C.A. § 32(c) (4) provides in relevant part: “The court shall grant the discharge unless- satisfied that the bankrupt has * * *" }, { "docid": "4735247", "title": "", "text": "“at that time [the post-discharge deposition of the debtors], First National Bank of Harrisburg first found out they had been defrauded in that they had been financing a phantom house.” Finally, counsel states that disposing of one’s assets “... is the type of moral turpitude that has been committed and to deny dis-chargeability of debt.” Transcript, Page 7, Lines 13-14. Thus, it is clear that counsel for the Bank, in his own mind, was characterizing a fraud committed against the Bank, not a fraud devised to procure a discharge of all debts owed by the Joneses. Since the Bank pled no facts or circumstances establishing the “fraud” it alleged in its Complaint, the trial judge, in ruling on the Debtors’ Motion to Dismiss, was forced to rely upon the facts pled in appellant’s Complaint and the argument of counsel at the pretrial conference. The only “fact” or circumstance pled by the Bank was the Debtors had “fraudulently” disposed of certain assets in which the Bank held a perfected security interest within one year of the date of Debtors’ petition. This is clearly not the kind of fraud contemplated by § 727(d)(1) because it in no way evinces a fraudulent intent on the part of the Debtors to procure their discharge by fraud. These facts do, however, suggest a transaction properly covered by § 523 of the Code, as the bankruptcy court found. Therefore, the Bank’s failure to plead any facts establishing the fraudulent procurement of the Debtors’ discharge, when taken with the above-quoted statements of counsel for the Bank, makes it clear that the bankruptcy court’s order finding the Complaint one brought under § 523 rather than § 727 was not clearly erroneous. If anything, it was the direct result of counsel’s apparent misunderstanding of § 727. Additionally, because the Bank pled no facts nor presented any evidence of a fraudulent procurement of the discharge, any mistake by the bankruptcy court in characterizing the Bank’s Complaint as one under § 523 was harmless error, and pursuant to Rule 9005, Bankruptcy Rules, provides no ground for vacating the order complained of." }, { "docid": "22980071", "title": "", "text": "(D. C.) 7 Am. Bankr. Rep. 40, 111 Fed. 151; In re Marshall Paper Co., 4 Am. Bankr. Rep. 468, 102 Fed. 872, 43 C. C. A. 38. “It was held under the act of 1867, which in section 33 provided that ‘no debt created by fraud or embezzlement of the bankrupt shall be discharged,’ that ‘fraud’ as used in that section meant ‘positive fraud in fact involving moral turpitude or intentional wrong as does embezzlement, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. Such a construction of the statute is consonant with equity, and consistent with the object and intention of Congress in enacting a general law by which the honest citizen may be relieved from the burden of hopeless insolvency. A different construction would be inconsistent with the liberal spirit which pervades the entire bankruptcy system.’ Neal v. Scruggs, 95 U. S. 704, 24 L. Ed. 586 (by Mr. Justice Harlan). “Therefore, although, on principles of agency and partnership, a discharge may not relieve Riess from ‘liabilities for obtaining property by.false representations’ (a question not to be decided here), it is considered that, not having himself participated in the making of the short statement relied on by the hanks, the fraud of his partner cannot under these circumstances be imputed to him, and his discharge cannot therefore be refused. Matter of Hyman (D. C.) 3 Am. Bankr. Rep. 169, 97 Fed. 195; Matter of Meyers (D. C.) 5 Am. Bankr. Rep. 4, 105 Fed. 353.” This, report and recommendation were confirmed by the court. As we find no reason in the law (and, certainly, none in business or morals) why an honest bankrupt should not be discharged, we answer the question, stated by the trial judge in this case, in. the negative. It is therefore ordered that the decree of the District Court be reversed, and the decree now rendered here that the petition of James Mallory ITardie for a discharge in bankruptcy be, and the same is hereby, granted. SHEEBY, Circuit Judge (dissenting). After the bankruptcy" } ]

[ { "docid": "22035965", "title": "", "text": "— neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract — certain characteristics of such interests are so far evident. These characteristics fall into two general categories. First, a State has a quasi-sovereign interest in the health and well-being — both physical and economic — of its residents in general. Second, a State has a quasi-sovereign interest in not being discriminatorily denied its rightful status within the federal system. The Court has not attempted to draw any definitive limits on the proportion of the population of the State that must be adversely affected by the challenged behavior. Although more must be alleged than injury to an identifiable group of individual residents, the indirect effects of the injury must be considered as well in determining whether the State has alleged injury to a sufficiently substantial segment of its population. One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers. Distinct from but related to the general well-being of its residents, the State has an interest in securing observance of the terms under which it participates in the federal system. In the context of parens patriae actions, this means ensuring that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system. Thus, the State need not wait for the Federal Government to vindicate the State’s interest in the removal of barriers to the participation by its residents in the free flow of interstate commerce. See Pennsylvania v. West Virginia, 262 U. S. 553 (1923). Similarly, federal statutes creating benefits or alleviating hardships create interests that a State will obviously wish to have accrue to its residents. See Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945) (federal antitrust laws); Maryland, v. Louisiana, 451 U. S. 725 (1981) (Natural Gas Act). Once" } ]

[ { "docid": "22483062", "title": "", "text": "1438, with id. at 538-39, 127 S.Ct. 1438 (Roberts, C.J., dissenting). Instead, states may sue the federal government parens patriae to enforce rights guaranteed by a federal statute. See Massachusetts v. EPA, 549 U.S. at 520 n.17, 127 S.Ct. 1438 ; see also New York v. Sebelius, No. 1:07-CV-1003 (GLS) (DRH), 2009 WL 1834599, at *12 (N.D.N.Y. June 22, 2009) (collecting cases). Massachusetts v. EPA expressly did not disturb the settled rule, however, that a state may not sue parens patriae to \"protect her citizens from the operation of federal statutes.\" Massachusetts v. EPA, 549 U.S. at 520 n.17, 127 S.Ct. 1438 (quoting Georgia v. Penn. R. Co., 324 U.S. 439, 447, 65 S.Ct. 716, 89 L.Ed. 1051 (1945) ). The court concludes that the State Plaintiffs lack standing to bring either their notice and information-use policy claims. With respect to their notice claim, the State Plaintiffs have not argued or demonstrated that Defendants' alleged failure to provide DACA applicants with adequate notice of changes in the DACA program and renewal deadline has actually harmed \"the health and well-being\" of state residents or any other cognizable quasi-sovereign interest. See Snapp, 458 U.S. at 607, 102 S.Ct. 3260. (Cf. State Pls. Am. Compl. 15, 100; State Pls. Opp'n at 21-22.) Even if they had done so, they would be challenging federal enforcement of federal immigration laws as unconstitutional, which Massachusetts v. Mellon prohibits. See Massachusetts v. EPA, 549 U.S. at 520 n.17, 127 S.Ct. 1438 (\"[T]here is a critical difference between allowing a State 'to protect her citizens from the operation of federal statutes' (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do).\"). For the same reason, the State Plaintiffs also lack standing to assert their information-use policy claims. Even assuming, as discussed above, that the change in information-use policy will facilitate the removal of undocumented immigrants from these states, and that this removal will harm the \"health and well-being-both physical and economic\" of state residents, see Snapp, 458 U.S. at 607, 102 S.Ct. 3260, the thrust of" }, { "docid": "8816534", "title": "", "text": "Eng’g Co., 660 F.2d at 250 (citing Ford, 323 U.S. at 464, 65 S.Ct. 347). A State is a real party in interest when it “articulate[s] an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest.” Illinois v. Life of Mid-America Ins. Co., 805 F.2d 763, 766 (7th Cir.1986) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982)) (emphasis added); see also SDS West Corp., 640 F.Supp.2d at 1050 (holding that when a State sues on behalf of its residents without a sovereign or quasi-sovereign interest, it is only a nominal party and thus not the real party in interest). Advancing a quasi-sovereign interest is enough to make a State a real party in interest. See Hood ex. rel Mississippi v. Microsoft Corp., 428 F.Supp.2d 537, 542 (S.D.Miss.2006); Alabama ex rel. Galanos v. Star Service & Petroleum Co., Inc., 616 F.Supp. 429, 431 (D.C.Ala.1985); New York ex rel. Abrams v. General Motors Corp., 547 F.Supp. 703, 706 n. 5 (S.D.N.Y.1982). Similarly, advancing a sovereign or quasi-sovereign interest allows a State to sue as parens patriae on behalf of its citizens. See SDS West Corp., 640 F.Supp.2d at 1050 (holding that a State must articulate a quasi-sovereign interest in order to have parens patriae standing). An action brought by a State advances a quasi-sovereign interest (such that the State is the real party in interest) when the action concerns a “substantial segment of the [State’s] population.” SDS West Corp., 640 F.Supp.2d at 1050 (quoting Snapp, 458 U.S. at 607, 102 S.Ct. 3260). The Supreme Court has ruled that “a State has a quasi-sovereign interest in the health and well-being — both physical and economic — of its residents in general.” Snapp, 458 U.S. at 607, 102 S.Ct. 3260. The Court suggested in Snapp that “[o]ne helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae" }, { "docid": "18741167", "title": "", "text": "quasi-sovereign interests “consist of a set of interests that the state has in the well-being of its populace.” Id. at 602, 102 S.Ct. at 3266. A state has a. quasi-sovereign interest in the general health and well-being of its residents — be it physical or economic. Id. at 607,102 S.Ct. at 3268-69. A state also has a quasi-sovereign interest in “ensuring that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system.” Id. at 608, 102 S.Ct. at 3269. Beyond these general examples, the Supreme Court gave very little guidance as to when an interest qualifies as “quasi-sovereign.” The Court suggested, however, that parens patriae standing arises most often in areas where a state “would likely attempt to address [the alleged injury] through its sovereign lawmaking powers.” Id. Contrary to Volpert’s assertions, the State is more than a mere “nominal party” in this case. The State of Illinois has a direct interest in protecting individual securities investors from economic harm caused by fraudulent offerings, and has long exercised its authority to protect such investors. The State addressed such concern through its lawmaking powers by enacting the Illinois Securities Law of 1953. A state of the United States clearly has a quasi-sovereign interest in maintaining the integrity of its legislative and police powers. See In re Trujillo, 135 B.R. 674, 675-76 (Bankr.D.Colo.1992) (Colorado held to have “quasi-sovereign interest” in enforcing Colorado Consumer Protection Act). The State of Illinois’ interest in enforcing its securities law in state court is directly tied to its attempts to bar discharge of related underlying debts in bankruptcy. See DeFelice, 77 B.R. at 380. If the State were denied the right to bring these non-dischargeability claims, the resulting bankruptcy discharge would effectively emasculate its authority to enforce the Illinois Securities Law in state court. (b) Numerosity In addition to identifying a quasi-sovereign interest to assert parens patriae standing, the State must also allege an “injury to a sufficiently substantial segment of its population.” Snapp, 458 U.S. at 607, 102 S.Ct. at 3269. There is no brightline" }, { "docid": "20877686", "title": "", "text": "not barred outright from suing the federal government based on a parens patriae theory; rather, provided that the states are seeking to enforce— rather than prevent the enforcement of — a federal statute, a parens patriae suit between these parties may be maintained. In the instant case, the States are suing to compel the Government to enforce the federal immigration statutes passed by Congress and to prevent the implementation of a policy that undermines those laws. Though seeking adherence to a federal statute is a necessary component for a state’s parens patriae suit against the federal government, it alone is not enough; in addition, states must identify a quasi-sovereign interest that is harmed by the alleged under-enforcement. See Alfred L. Snapp, 458 U.S. at 601, 102 S.Ct. 3260 (“to have such [parens patriae ] standing the State must assert an injury to what has been characterized as a ‘quasi-sovereign interest’ ”). The defining characteristics of a quasi-sovereign interest are not explicitly laid out in case law; rather, the meaning of the term has undergone a significant expansion over time. See Com. of Pa. v. Kleppe, 533 F.2d 668, 673 (D.C.Cir.1976). Although the earliest recognized quasi-sovereign interests primarily concerned public nuisances, the doctrine ex panded rapidly to encompass two broad categories: (1) a state’s quasi-sovereign interest “in the health and well-being— both physical and economic — of its residents”; and (2) a state’s quasi-sovereign interest in “not being discriminatorily denied its rightful status within the federal system.” Alfred L. Snapp, 458 U.S. at 607, 102 S.Ct. 3260. In particular, courts have consistently recognized a state’s quasi-sovereign interest in protecting the economic well-being of its citizens from a broad range of injuries. See, e.g., Alfred L. Snapp, 458 U.S. at 609, 102 S.Ct. 3260 (discrimination against Puerto Rican laborers injured economic well-being of Puerto Rico); Wash. Utilities and Transp. Comm’n, 513 F.2d at 1152 (increased rates for intrastate phone service would injure the economic well-being of the state); Abrams, 582 F.Supp. at 1160 (changes to Medicare that would decrease payments to New York recipients is sufficient injury to economic well-being); Alabama ex" }, { "docid": "18741166", "title": "", "text": "argues the State has standing to bring the pending § 523(a) claims under the doctrine of parens patriae. The concept of parens patriae, literally “parent of the country,” confers standing to sue when a state seeks to protect a “quasi-sovereign interest.” See generally Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 600-06, 102 S.Ct. 3260, 3265-68, 73 L.Ed.2d 995 (1982), (tracing the common law roots of parens patriae standing and summarizing its application in modern case law). To assert parens patriae standing, the State must be more than a mere “nominal party without a real interest of its own.” Id. at 600, 102 S.Ct. at 3265. Rather, it must “articulate an interest apart from the interests of particular private parties” on whose behalf the action is brought. Id. at 607,102 S.Ct. at 3268. The State must further satisfy a numerosity test — namely, it must allege an “injury to a sufficiently substantial segment of its population.” Id. (a) Quasi-Sovereign Interests As defined by the Supreme Court in Snapp, quasi-sovereign interests “consist of a set of interests that the state has in the well-being of its populace.” Id. at 602, 102 S.Ct. at 3266. A state has a. quasi-sovereign interest in the general health and well-being of its residents — be it physical or economic. Id. at 607,102 S.Ct. at 3268-69. A state also has a quasi-sovereign interest in “ensuring that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system.” Id. at 608, 102 S.Ct. at 3269. Beyond these general examples, the Supreme Court gave very little guidance as to when an interest qualifies as “quasi-sovereign.” The Court suggested, however, that parens patriae standing arises most often in areas where a state “would likely attempt to address [the alleged injury] through its sovereign lawmaking powers.” Id. Contrary to Volpert’s assertions, the State is more than a mere “nominal party” in this case. The State of Illinois has a direct interest in protecting individual securities investors from economic harm caused by fraudulent offerings," }, { "docid": "22483058", "title": "", "text": "Plaintiffs have not, however, identified any cognizable harm to their proprietary interests that would result from the removal of their undocumented residents. The State Plaintiffs have proffered evidence that the removal of DACA beneficiaries would grievously affect state economies. (See Decl. of Dr. Ike Brannon ¶¶ 12, 14 (State Pls. Am. Compl., Ex. 4 (Dkt. 55-4) ) (estimating that the removal of DACA recipients from the United States \"would cost ... the economy as a whole $215 billion in lost GDP,\" with impacts falling hardest on states with the largest number of DACA recipients).) Despite the scale of these impacts, the State Plaintiffs' own authority makes clear that states lack standing to bring a \"claim ... that actions taken by United States Government agencies had injured a State's economy and thereby caused a decline in general tax revenues.\" Wyoming v. Oklahoma, 502 U.S. 437, 448, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992). Absent some showing of injury to their own proprietary interests (for example, \"direct injury in the form of a loss of specific tax revenues,\" id. ), the State Plaintiffs cannot maintain their information-use policy claims based on alleged harms to their proprietary interests. ii. Quasi-Sovereign Interests Accordingly, the court will consider whether the State Plaintiffs can assert these claims parens patriae to vindicate their quasi-sovereign interests. States may bring parens patriae (literally, \"parent of the country\") suits to vindicate what the Court has characterized as \"quasi-sovereign\" interests. See Snapp, 458 U.S. at 600-02, 102 S.Ct. 3260. There are no bright-line rules for which interests qualify as \"quasi-sovereign.\" See id. at 600, 607, 102 S.Ct. 3260 ; 13B Charles A. Wright et al., Federal Practice and Procedure § 3531.11.1, at 117 (3d ed. 2008) (\"Wright & Miller\"). In general, however, the Court has recognized that a state has quasi-sovereign interests in the \"health and well-being-both physical and economic-of its residents in general,\" in protecting state \"residents from the harmful effects of discrimination,\" and in challenging the discriminatory denial of a state's \"rightful status within the federal system.\" Id. at 607, 609, 102 S.Ct. 3260. There are, however, at least" }, { "docid": "22483060", "title": "", "text": "two notable limitations on states' parens patriae standing. First, to be \"quasi-sovereign,\" the state's interests must be sufficiently generalized that the state is seeking to vindicate its citizens' welfare, rather than simply pressing suit on behalf of its individual residents. See id. at 607, 102 S.Ct. 3260 (\"[M]ore must be alleged than injury to an identifiable group of individual residents....\"). A state cannot sue parens patriae when it is \"merely litigating as a volunteer the personal claims of its citizens.\" Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976). Second, special considerations are present when a state brings a parens patriae suit against the federal government. See 13B Wright & Miller § 3531.11.1, at 96. In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the Court rejected Massachusetts's attempt to bring a parens patriae suit challenging a federal statute as unconstitutional. See id. at 485-86, 43 S.Ct. 597. \"While the state, under some circumstances, may sue in [a parens patriae ] capacity for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae....\" Id. (emphasis added); see also Snapp, 458 U.S. at 609 n.16, 102 S.Ct. 3260 (\"A State does not have standing as parens patriae to bring an action against the Federal Government.\"). The Court has rejected the argument, however, that Massachusetts v. Mellon bars all state parens patriae claims against the federal government. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, --- U.S. ----, 135 S.Ct. 2652, 2664 n.10, 192 L.Ed.2d 704 (2015) (observing that \"[t]he cases on the standing of states to sue the federal government seem to depend on the kind of claim that the state advances\" (quoting Richard Fallon et al., Hart and Wechsler's The Federal Courts and the Federal System 263-66 (6th ed. 2009) ) ). Compare Massachusetts v. EPA, 549 U.S. at 520 n.17, 127 S.Ct." }, { "docid": "20741916", "title": "", "text": "which it sues much like a private party suffering a direct, tangible injury. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601-02, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). It may also bring a parens patriae suit in which it seeks to vindicate a “quasi-sovereign” interest on behalf of its citizens. Id.; see Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 119 (2d Cir.2002). A State’s “quasi-sovereign” interests include protecting the “health and well-being — both physical and economic— of its residents in general.” Id. at 607, 102 S.Ct. 3260. By contrast, where a State brings suit “to pursue the interests of a private party, and pursue[s] those interests only for the sake of [that private party],” the State is merely a “nominal party” and not a real party in interest. Alfred L. Snapp & Son, 458 U.S. at 601-02, 102 S.Ct. 3260. 2. The Court Lacks Jurisdiction Pursuant to CAFA The Commonwealth claims to bring this action in both its proprietary and parens patriae capacities. (See Am. Compl. ¶ 6.) It seeks (1) damages for a direct, tangible injury it has allegedly suffered — the reimbursement of Medicaid claims involving OxyContin — and (2) equitable and injunctive relief on the basis of its “quasi-sovereign interest” in protecting the health and safety of its citizens. (See Am. Compl. ¶ 99 (“The health and safety of the citizens of Kentucky ... including those who use, have used, or will use OxyContin, is a matter of great public interest and of legit imate concern to the Commonwealth .... ”)). Purdue urges that Kentucky consumers are also real parties in interest because, according to Purdue, the Commonwealth seeks damages on behalf of a discrete group of Kentucky consumers. In support of this argument, Purdue relies on two cases — Louisiana ex rel. Caldwell v. Allstate Ins., 536 F.3d 418 (5th Cir.2008) and West Virginia ex rel. McGraw v. Comcast Gorp., 705 F.Supp.2d 441 (E.D.Pa.2010)— in which claims filed by state attorneys general were deemed to be subject to CAFA. Neither case is controlling and both" }, { "docid": "19844673", "title": "", "text": "parens patriae doctrine allows a state to maintain a legal action where state citizens have been harmed, where the state maintains a quasi-sovereign interest. Alfred L. Snapp & Son, Inc. v. Puerto Rico, - U.S. -, 102 S.Ct. 3260, 3265-66, 73 L.Ed.2d 995 (1982). A state maintains a quasi-sovereign interest either where the health and well-being of its residents is affected, or where the state works to assure that its residents enjoy the full benefit of federal laws. Id. at -, 102 S.Ct. at 3269-70. Minnesota maintains a-quasi-sovereign interest in both these realms. First, Minnesota has a quasi-sovereign interest in protecting the economic health of its citizens. In Snapp, the Court recognized that “a state’s interests in the health and well-being of its residents extends beyond mere physical interests to economic and commercial interests.” Id. at -, 102 S.Ct. at 3270. The Court cited its earlier opinion in Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), in which Georgia alleged that 20 railroads had conspired to fix discriminatory freight rates, in violation of federal antitrust law. The Court allowed Georgia to bring its action as parens patriae, finding that Georgia as a representative of the public is complaining of a wrong, which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister states. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. Id. at 451, 65 S.Ct. at 723. Minnesota alleges just such a wrong. Consequently, the State is entitled to bring this action as parens patriae. Defendant cites Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976), in opposition. In that case, the Court denied Pennsylvania’s mo tion to file suit as parens patriae on behalf of its citizens, to challenge a New Jersey tax on New Jersey-derived income of nonresidents. In a five-member opinion, the Court found that Pennsylvania" }, { "docid": "11978096", "title": "", "text": "to prove standing is on the party invoking federal jurisdiction. Friends of the Earth. Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 198, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Although standing must eventually be proven by the same standard of proof as the substantive claims alleged, “[gjeneral allegations of injury may suffice at the pleading stage.” Id. The Commonwealth asserts parens pat-riae standing to ensure the well-being of its residents and their access to the benefits of the federal system, as well as proprietary standing to vindicate its own interests. MTI at 1. The defendants argue that states are prohibited from bringing a parens patriae action against the federal government and that the Commonwealth’s proprietary injuries are too tenuous to support standing. 1. Parents Patriae Standing “Parens patriae means literally ‘parent of the country.’ ” Alfred L. Snapp & Son., Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (“Snapp”). American courts have long recognized that states, as parens patriae, have a peculiar “set of interests... in the well-being of [their] populace.” Id. at 602, 102 S.Ct. 3260. These interests are often referred to as “quasi-sovereign interests,” and although that concept “does not lend itself to a simple or exact definition,” it includes an interest in “securing residents from the harmful effects of discrimination.” Id. at 601, 609, 102 S.Ct. 3260. If a state’s quasi-sovereign interests are threatened, the state has standing under Article III to bring an action in federal court to vindicate them. Id. at 601, 102 S.Ct. 3260. Defendants have argued that an early Supreme Court case, Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), created a “prohibition against states suing the United States on behalf of their citizens.” Virginia v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011). But it is a mischaracterization of Mellon (and Virginia) to speak of a “prohibition” without further qualification. Importantly, both cases addressed a state’s challenge to congressional, rather than executive, action. In Melton, Massachusetts sought to enjoin appropriations under a federal statute called the Maternity" }, { "docid": "20877720", "title": "", "text": "some contexts is relied upon as the exclusive basis for standing. Traditionally, parens patriae actions were instituted by states seeking to protect the interests of their citizens, as well as for protection of their own quasi-sovereign interests. One of this principle’s few limitations stems from the notion that the federal government, rather than a state, has the superior status in the role as a parent. In other words, the federal government was the supreme parens patriae. Thus a state can rely on parens patriae to protect its interests against any entity or actor — except the federal government. As explicitly noted by the dissent in Massachusetts v. E.P.A: A claim of parens patriae standing is distinct from an allegation of direct injury. See Wyoming v. Oklahoma, 502 U.S. 437, 448-449, 451, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992). Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a “quasi-sovereign interest” “apart from the interests of particular private parties.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (emphasis added) (cited ante, at 1454). Just as an association suing on behalf of its members must show not only that it represents the members but that at least one satisfies Article III requirements, so too a State asserting quasi-sovereign interests as parens pat-riae must still show that its citizens satisfy Article III. Focusing on Massachusetts’s interests as quasi-sovereign makes the required showing here harder, not easier. The Court, in effect, takes what has always been regarded as a necessary condition for parens patriae standing' — a quasi-sovereign interest— and converts it into a sufficient showing for purposes of Article III. What is more, the Court’s reasoning falters on its own terms. The Court asserts that Massachusetts is entitled to “special solicitude” due to its “quasi-sovereign interests,” ante, at 1455, but then applies our Article III standing test to the asserted injury of the Commonwealth’s loss of coastal property. See ante, at 1456 (concluding that" }, { "docid": "19844675", "title": "", "text": "had no quasi-sovereign interest in the matter, and that its suit represented a collectivity of private actions for taxes withheld from private parties. Id. at 666, 96 S.Ct. at 2336. However, in Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981), the Court upheld Maryland’s parens patriae challenge of a Louisiana tax on natural gas. The Court held that a state “may act as the representative of its citizens in original actions where the injury alleged affects the general population of a state in a substantial way.” Id. at 737, 101 S.Ct. at 2124. As in Maryland, Minnesota alleges an economic injury to a large number of its citizens. On the basis of Maryland, Minnesota is thus warranted in bringing a parens patriae action. Minnesota also maintains a quasi-sovereign interest in assuring that its residents receive the benefits that flow from participation in the federal system. In Snapp, the Court found that a state has the right to bring an action to guarantee that its residents enjoy the full benefit of federal legislation. -U.S. at-, 102 S.Ct. at 3269. Hence, the Court held in that case that the Commonwealth of Puerto Rico had parens patriae standing to bring a complaint alleging violation of federal acts which worked to guarantee employment benefits. Id. at -, 102 S.Ct. at 3270. See also Georgia v. Pennsylvania R. Co., 324 U.S. at 447-52, 65 S.Ct. at 721-23 (in which Georgia maintained a quasi-sovereign interest in assuring its residents the benefits of federal antitrust legislation); Maryland v. Louisiana, 451 U.S. at 737-39, 101 S.Ct. at 2124-25 (in which Maryland maintained a quasi-sovereign interest in securing benefits of the Natural Gas Act for its residents). Similarly, Minnesota maintains a quasi-sovereign interest in assuring its residents the benefits of the ESA. Furthermore, various courts have noted that individuals with small overcharge claims will not avail themselves of ESA § 210, due to the burden of pursuing an action. See Stertz v. Gulf Oil Corp., 95 F.R.D. 116, 120 (E.D.N.Y.1982); Barr v. WUI/TAS, Inc., 66 F.R.D. at 116. Thus, Minnesota may have added incentive" }, { "docid": "15982289", "title": "", "text": "that PRPHA and PRDH ought to be treated as intrinsically part of the Commonwealth of Puerto Rico. Having reached said conclusion, it seems inevitable to regard PRPHA and PRDH as “non-persons” for purposes of their constitutional claims. See Delta Special School District No. 5 v. State Bd. of Edue., 745 F.2d 532 (1984) (a political subdivision of a state is not protected by the Fourteenth Amendment). Nevertheless, the analysis detailed above is flawed by failing to acknowledge the well-established parens-patriae doctrine. “The [United States Supreme] Court has recognized the legitimacy of Parens patriae suits. It has, however, become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania v. Netv Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (citations omitted). There are two possible ways in which a State can claim a quasi-sovereign interest: “First, a State has a quasi-sovereign interest in the health and well-being' — both physical and economic of its residents in general. Second, a State has a quasi-sovereign interest in not being dis- criminatorily denied its rightful status within the federal system.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). Both of these requirements are met by PRPHA and PRDH as instru-mentalities of the Commonwealth of Puer-to Rico since their action concerns the physical and economic well-being of low-income residents as well as the necessary funds to provide adequate public housing, allegedly denied due to HUD’s discrimination on the basis of race or national origin. In dictum, however, the Snapp Court asserted that “[a] State does not have standing as parens patriae to bring an action against the Federal Government.” Id. at 610 n. 16, 102 S.Ct. 3260 (citations omitted). Yet, we must be careful “not go so far as to say that a state may never intervene by suit to protect its citizens against any form of unconstitutional acts of Congress ...,” Massachusetts v. Mellon," }, { "docid": "8816535", "title": "", "text": "ex rel. Abrams v. General Motors Corp., 547 F.Supp. 703, 706 n. 5 (S.D.N.Y.1982). Similarly, advancing a sovereign or quasi-sovereign interest allows a State to sue as parens patriae on behalf of its citizens. See SDS West Corp., 640 F.Supp.2d at 1050 (holding that a State must articulate a quasi-sovereign interest in order to have parens patriae standing). An action brought by a State advances a quasi-sovereign interest (such that the State is the real party in interest) when the action concerns a “substantial segment of the [State’s] population.” SDS West Corp., 640 F.Supp.2d at 1050 (quoting Snapp, 458 U.S. at 607, 102 S.Ct. 3260). The Supreme Court has ruled that “a State has a quasi-sovereign interest in the health and well-being — both physical and economic — of its residents in general.” Snapp, 458 U.S. at 607, 102 S.Ct. 3260. The Court suggested in Snapp that “[o]ne helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers.” Id. For example, where a State legislature enacts a statute that seeks to “seeur[e] an honest marketplace” for State residents, then the statute expresses a quasi-sovereign interest and grants the State standing to bring a parens patriae suit. SDS West Corp., 640 F.Supp.2d at 1050 (holding that “securing an honest marketplace” is “a well established quasi-sovereign interest”). A State that brings a suit in which it asserts not a quasi-sovereign interest but exclusively the private interests of a small subset of the State’s population is not a real party in interest; rather, it is only a nominal party. Snapp, 458 U.S. at 601-02, 102 S.Ct. 3260. “[A] State may, for a variety of reasons, attempt to pursue the interests of a private party, and pursue those interests only for the sake of the real party in interest. Interests of private parties are obviously not in themselves sovereign interests, and they do not become" }, { "docid": "19844672", "title": "", "text": "Given the liberal attitude to be extended toward pleadings, the court is not persuaded by Prairie States Petroleum and follows instead the line of thought presented in Barr, which Minnesota has clearly satisfied. For these reasons, the Court holds that Minnesota’s allegations of intentional overcharges are sufficient to withstand Standard’s motion to dismiss for inadequacy of the pleadings. III. Parens Patriae Claims In addition to its proprietary claims, Minnesota also alleges overcharges as parens patriae for Minnesota citizens adversely affected by the overcharges. Neither case law nor the ESA disallows Minnesota’s ability to function as parens patriae; indeed, the former supports it. Consequently, Minnesota may proceed with its parens patriae claims. “Parens patriae” means literally “parent of the country.” Black’s Law Dictionary 1003 (1979). Originally, the parens patriae doctrine allowed the state to represent individuals who were legally unable to do so for themselves. As time went on, however, the meaning of the doctrine changed, and par-ens patriae has become a different and more broad sovereign power. As recently defined by the Supreme Court, the parens patriae doctrine allows a state to maintain a legal action where state citizens have been harmed, where the state maintains a quasi-sovereign interest. Alfred L. Snapp & Son, Inc. v. Puerto Rico, - U.S. -, 102 S.Ct. 3260, 3265-66, 73 L.Ed.2d 995 (1982). A state maintains a quasi-sovereign interest either where the health and well-being of its residents is affected, or where the state works to assure that its residents enjoy the full benefit of federal laws. Id. at -, 102 S.Ct. at 3269-70. Minnesota maintains a-quasi-sovereign interest in both these realms. First, Minnesota has a quasi-sovereign interest in protecting the economic health of its citizens. In Snapp, the Court recognized that “a state’s interests in the health and well-being of its residents extends beyond mere physical interests to economic and commercial interests.” Id. at -, 102 S.Ct. at 3270. The Court cited its earlier opinion in Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), in which Georgia alleged that 20 railroads had conspired to fix discriminatory" }, { "docid": "22483059", "title": "", "text": "revenues,\" id. ), the State Plaintiffs cannot maintain their information-use policy claims based on alleged harms to their proprietary interests. ii. Quasi-Sovereign Interests Accordingly, the court will consider whether the State Plaintiffs can assert these claims parens patriae to vindicate their quasi-sovereign interests. States may bring parens patriae (literally, \"parent of the country\") suits to vindicate what the Court has characterized as \"quasi-sovereign\" interests. See Snapp, 458 U.S. at 600-02, 102 S.Ct. 3260. There are no bright-line rules for which interests qualify as \"quasi-sovereign.\" See id. at 600, 607, 102 S.Ct. 3260 ; 13B Charles A. Wright et al., Federal Practice and Procedure § 3531.11.1, at 117 (3d ed. 2008) (\"Wright & Miller\"). In general, however, the Court has recognized that a state has quasi-sovereign interests in the \"health and well-being-both physical and economic-of its residents in general,\" in protecting state \"residents from the harmful effects of discrimination,\" and in challenging the discriminatory denial of a state's \"rightful status within the federal system.\" Id. at 607, 609, 102 S.Ct. 3260. There are, however, at least two notable limitations on states' parens patriae standing. First, to be \"quasi-sovereign,\" the state's interests must be sufficiently generalized that the state is seeking to vindicate its citizens' welfare, rather than simply pressing suit on behalf of its individual residents. See id. at 607, 102 S.Ct. 3260 (\"[M]ore must be alleged than injury to an identifiable group of individual residents....\"). A state cannot sue parens patriae when it is \"merely litigating as a volunteer the personal claims of its citizens.\" Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976). Second, special considerations are present when a state brings a parens patriae suit against the federal government. See 13B Wright & Miller § 3531.11.1, at 96. In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the Court rejected Massachusetts's attempt to bring a parens patriae suit challenging a federal statute as unconstitutional. See id. at 485-86, 43 S.Ct. 597. \"While the state, under some circumstances, may sue in [a parens patriae ] capacity for the" }, { "docid": "9823207", "title": "", "text": "interest in enforcing its laws, it has a personal stake in appealing the October 1997 injunction that gives the County discretion to violate those laws. Second, all of the parties stipulated that there were 289 blue warrant violators who, but for the injunction, would be required under state law to be housed in the Jail. This implicates the State’s quasi-sovereign interest in protecting its citizens from criminal activity. See Snapp, 458 U.S. at 602, 102 S.Ct. 3260 (“Quasi-sovereign interests stand apart from [sovereign interests, proprietary interests, or private interests pursued by the State as a nominal party].... They consist of a set of interests that the State has in the well-being of its populace.”). While we recognize that the concept of quasi-sovereign standing “risks being too vague to survive the standing requirements of Article III,” id. at 602, 102 S.Ct. 3260, we find the State’s interest at issue here falls within the category of “a quasi-sovereign interest in the health and well-being — both physical and economic — of its residents in general.” Id. at 607, 102 S.Ct. 3260. As a result of this injunction, parole violators who should be incarcerated remain free, potentially increasing the level of criminal activity. The State has a legitimate interest in “protect[ing] its citizens from criminal elements.” Nat’l People’s Action v. Village of Wilmette, 914 F.2d 1008, 1011 (7th Cir.1990) (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 618, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976)). This quasi-sovereign interest also gives the State a personal stake in the outcome of the appeal. For the reasons stated above, we find the State satisfies the three-part standard set out in Searcy and, therefore, has standing to appeal the 1999 order. IV. TERMINATION OF RELIEF UNDER § 3626(b) The PLRA “establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions.” Miller v. French, 530 U.S. 327, 120 S.Ct. 2246, 2250, 147 L.Ed.2d 326 (2000). The PLRA both “narrowly limits the relief a court may order in prisoner suits,” Ruiz v. Estelle, 161 F.3d 814, 817 (1998)," }, { "docid": "21773042", "title": "", "text": "of the Supreme Court decided that Texas had standing to pursue its APA claim. There is no daylight between the 2015 Texas suit against the federal government and the current Commonwealth suit against the federal government. Like Texas, the Commonwealth challenges agency action in issuing regulations—here, the New IFRs. See Texas, 809 F.3d at 152. It is all- the more significant that the Commonwealth, like Texas before it, sues to halt affirmative conduct made by a federal agency. See id. Whereas Massachusetts v. EPA concerned regulatory inaction—the EPA’s order denying a rulemaking petition—the-Commonwealth’s case here challenges regulatory action that, it contends, affects- its legally cognizable interests. See 549 U.S. at 514, 127 S.Ct. 1438. Thus, it is especially appropriate to accord the Commonwealth “special solicitude.” Texas, 809 F.3d at 152-53. Furthermore, like Texas and Massachusetts, the Commonwealth seeks to protect a quasi-sovereign interest—the health of its women residents. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-01, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (holding that a State has a “quasi-sovereign interest in the health and wellbeing—both physical and economic—of its residents in general.”). As the Commonwealth observes, contraceptives offer significant health benefits, including the prevention of unintended pregnancies, and the treatment of menstrual disorders, acne or hirsutism, and pelvic pain. This quasi-sovereign interest in safeguarding the health and wellbeing of its women residents is inextricably intertwined with the Commonwealth’s alleged future fiscal injury that, as will be discussed later, goes to the heart of its Article III standing. See Texas, 809 F.3d at 153 (concluding that DAPA affected quasi-sovereign interest by “imposing substantial pressure” on Texas to change, its laws to avoid losing more money from driver license subsidies). According to the Commonwealth (and as addressed more fully below), the Agencies’ New IFRs will allow more employers to exempt themselves from the ACA’s Contraceptive Mandate. Consequently, the Commonwealth , contends that Pennsylvanian women will seek state-funded sources of contraceptive care. Such a course of action will likely cause the Commonwealth to expend more funds to protect its quasi-sovereign interest in ensuring that women residents" }, { "docid": "20135799", "title": "", "text": "state bringing a parens patriae suit is the only real party in interest on the plaintiffs side of the action, it is useful to ascertain whether the state has common law authority to bring the case as a parens patriae action. A state cannot bring a parens patriae suit under the common law without being a real party in interest. See Allegheny Gen. Hosp. v. Philip Morris, Inc., 228 F.3d 429, 436-37 (3d Cir.2000) (“A [parens patriae \\ suit, by definition, involves the government as the real party in interest.”). In other words, if a state brings a viable parens patriae action under the common law, that state must be a real party in interest. Therefore, to determine who are the real parties in interest in this case, brought as a parens patriae action, it is informative to examine the Supreme Court’s discussion of common law parens patriae authority in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) [hereinafter Snapp]. Snapp explains that in order for a state to prove that it has authority under the common law to bring a parens patriae action, it “must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party.” Id. at 607, 102 S.Ct. 3260. To be more than a nominal party, a state must “express a quasi-sovereign interest.” Id. Snapp identifies two main categories of quasi-sovereign interests: “[f]irst, a State has a quasi-sovereign interest in the health and well-being — both physical and economic — of its residents in general. Second, a State has a quasi-sovereign interest in not being discriminatorily denied its rightful status within the federal system.” Id. In this case, only the first category is relevant. The Snapp Court recognized that it might be difficult for lower courts to distinguish when a state is protecting its “residents in general” as opposed to a discrete group of citizens. “[I]n determining whether the State has alleged injury to a sufficiently substantial segment of its population,”" }, { "docid": "11978102", "title": "", "text": "charged with its enforcement.” Wash. Utils., 513 F.2d at 1153. Accordingly, a state is not be barred by the Mellon doctrine from a parens pat-riae challenge to executive action when the state has grounds to argue that the exeeu- tive action is contrary to federal statutory or constitutional law. Id. Having concluded that the Commonwealth is not categorically barred from maintaining a parens patriae action against the federal defendants, the next question is whether the other requirements of a parens patriae action have been satisfied. The first requirement is that the state have a legitimate quasi-sovereign interest in the litigation. In addition to its interest in “securing residents from the harmful effects of discrimination,” those interests include “the health and well-being — both physical and economic — of [the state’s] residents in general” and “ensuring that the State and its residents are not excluded from the benefits that... flow from participation in the federal system.” Snapp, 458 U.S. at 607-609, 102 S.Ct. 3260. The second requirement is that the challenged action have a sufficiently “substantial” effect on the state’s residents, rather than a narrow and definable class. Id. at 609, 102 S.Ct. 3260. When determining whether the effect is substantial, the court must consider persons who are both directly and indirectly affected. Id. For example, in Snapp, although only 787 Puerto Rican workers were allegedly denied the benefit of federal labor law, the Court held that the indirect impact of discrimination was nevertheless substantial, given the Court’s “experience with the political, social, and moral damage of discrimination[.]” Id. Here, the Commonwealth has made sufficient allegations to support par-ens patriae standing. It challenges executive action rather than a congressional statute. In doing so, it seeks to ensure that its residents “are not excluded from the benefits [of] participation in the federal system,” Snapp, 458 U.S. at 608, 102 S.Ct. 3260, most notably benefits afforded to Virginia residents by the Immigration and Naturalization Act and the federal constitution. Moreover, through its equal protection, First Amendment, and Religious Freedom Restoration Act claims, the Commonwealth seeks to “secur[e] its residents from the harmful effects" } ]

[ { "docid": "19803428", "title": "", "text": "Finding escape to be a Class D felony, the judge treated Broussard’s contempt conviction as a Class D felony. Because assaulting a federal officer is also a Class D felony, the district judge imposed identical concurrent terms for both offenses, consisting of two years in prison and one year of supervised release. Finally, the judge refused to alter the previously-imposed ban on consuming alcohol. Broussard appeals yet again. Analysis 1. Because criminal contempt has no statutory maximum sentence, 18 U.S.C. § 401, under a literal reading of the classification statute, it would be a Class A felony, 18 U.S.C. § 3559(a) (“An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is ... life imprisonment, or if the maximum penalty is death, as a Class A felony.”). We’ve rejected that literal approach to classifying contempt convictions. In United States v. Carpenter we explained that “[i]t would be unreasonable to conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious con-tempts appropriately, Congress meant to brand all contempts as serious and all contemnors as felons.” 91 F.3d 1282, 1284 (9th Cir.1996). Therefore, “criminal contempt should be classified for sentencing purposes according to the applicable Guidelines range for the most nearly analogous offense.” Id. at 1285. We reasoned that the “applicable Guidelines range is directly linked to the severity of the offense and provides the best analogy to the classification scheme” because it “focuses on the upper limit of the district judge’s discretion, classifying the crime according to the maximum sentence the judge was authorized to impose rather than the sentence actually imposed.” Id. It was on the basis of Carpenter that we remanded Broussard’s sentence following his first appeal. See p. 10249 supra. But the legal landscape has shifted since Carpenter. Its factual premise that the guidelines range sets the “upper limit of the district judge’s discretion,” Carpenter, 91 F.3d at 1285, has been eroded by Booker, 543 U.S. at 245, 125 S.Ct. 738 (rendering the guidelines advisory)," } ]

[ { "docid": "10868019", "title": "", "text": "can be classified. See, e.g., Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701-02, 41 L.Ed.2d 897 (1974) (classifying contempt to determine whether the defendant had the right to a jury trial). Carpenter points to cases involving the constitutional right to a jury trial, applicable to “serious” offenses but not to “petty” ones. See Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 1525-26, 16 L.Ed.2d 629 (1966). In this context, the Supreme Court has held that “the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.” Frank, 395 U.S. at 149, 89 S.Ct. at 1505. Criminal contempt is classified as “serious,” and the right to a jury trial applies, only if the sentence imposed is more than six months. See Taylor, 418 U.S. at 495, 94 S.Ct. at 2701-02; Maita v. Whitmore, 508 F.2d 143, 146 (9th Cir.1974). Carpenter urges us to use this “actual sentence” approach in applying 18 U.S.C. §§ 3583 and 3013(a) to sentences for contempt. As this case demonstrates, however, the actual sentence may not adequately reflect the severity of the eontemnor’s conduct. As the government notes, the district judge granted a downward departure based on a mitigating factor-time already served for civil contempt-that had no relevance to the seriousness of Carpenter’s contempt. Having canvassed the available alternatives, we conclude that criminal contempt should be classified for sentencing purposes according to the applicable Guidelines range for the most nearly analogous offense. The applicable Guidelines range is directly linked to the severity of the offense and provides the best analogy to the classification scheme set out in 18 U.S.C. § 3559. Like § 3559, the Guidelines range focuses on the upper limit of the district judge’s discretion, classifying the crime according to the maximum sentence the judge was authorized to impose rather than the sentence actually imposed. And because the district judge must choose which guideline to apply in criminal contempt cases, see U.S.S.G. §§ 2J1.1, 2X5.1, the sentencing range reflects the judge’s assessment of the severity of the contemnor’s conduct. III. The district judge" }, { "docid": "20695822", "title": "", "text": "that now courts in that circuit look to the most analogous offense’s statutorily defined maximum penalty as the upper limit on a judge’s discretion. See Broussard, 611 F.3d at 1072. However, we think the concerns raised by the Ninth Circuit are not enough to warrant disregarding the plain language of the classification scheme Congress set forth in 18 U.S.C. § 3559(a). The Ninth Circuit does not assert that the text of either the criminal contempt statute or § 3559(a)’s classification scheme is ambiguous. See Broussard, 611 F.3d at 1071-72 (“Because criminal contempt has no statutory maximum, sentence, 18 U.S.C. § 401, under a literal reading of the classification statute, it would be a Class A felony.”). Unlike the Ninth Circuit, however, we do not find that classifying criminal contempt as a Class A felony is so unreasonable as to be “patently absurd.” See Fernandez, 722 F.3d at 10. Rather, in agreement with the Supreme Court, we find it not absurd for Congress to have considered the broad power of contempt “essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); see Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 510-11, 22 L.Ed. 205 (1873). Furthermore, we are not persuaded that Congress could not have intended to label contempt as a Class A felony because of the seriousness of the “felon” appellation. It is undoubtedly true that Congress utilizes the classification under § 3559(a) in other criminal statutes. See, e.g., 18 U.S.C. § 3013(a)(2)(A) (requiring higher special assessment fees for felonies than for misdemeanors); 18 U.S.C. § 3561 (“A defendant who has been found guilty of an offense may be sentenced to a term of probation unless — (1) the offense is a Class A or Class B felony and the defen dant is an individual”). However seemingly harsh those consequences might be, it is the choice of Congress, and not the courts, to create sentencing policy. As no argument has" }, { "docid": "3202499", "title": "", "text": "an unlawful alien who had previously been deported from the United States (U.S.S.G. § 2L2.2(b)(l)) and subtracted two levels for acceptance of responsibility (§ 3E1.1), arriving at a total offense level of 8. Because Zapete had never before been convicted of any offense, the court determined his criminal history category to be I. The total offense level combined with the criminal history category yielded a recommended guidelines sentencing range of zero to six months. The district judge, however, after reminding the parties that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), had rendered the guidelines advisory rather than mandatory, sentenced Zapete to 48 months in prison, eight times the maximum guideline-recommended sentence. As explanation for the sentence he chose, the judge stated: The Court imposes this sentence based on the following factors. As it appear[s] from the presentence report ... this defendant has already been deported twice from the United States. He had been deported back in October of [19]85 and August of 1987. It also appears from the presentence report that he was arrested on November 14, 1991, in New York City, charged with criminal possession of controlled substance, narcotics, a Class A Felony, and with criminal possession of a weapon, which is a Class D Felony. And since 1992 a bench warrant [that] has been issued for his arrest remains outstanding. For those reasons the Court imposes the sentence that it has imposed. Zapete now challenges his sentence. We review sentences imposed after Booker for reasonableness. Booker; 543 U.S. at 261, 125 S.Ct. 738; United States v. Alli, 444 F.3d 34 (1st Cir.2006). Procedurally, under the advisory guidelines scheme set in place by Booker, a sentencing court will ordinarily begin by calculating the applicable guidelines range and then determine whether other factors “warrant an ultimate sentence above or below the guideline range.” United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.2006) (en banc). The court must consider factors identified by the parties, see id., and is also bound to consider the several sentencing factors set out in 18 U.S.C. § 3553(a)." }, { "docid": "20695821", "title": "", "text": "intended to classify all criminal contempts as Class A felonies because this would label “all con-tempts as serious and all contemnors as felons.” United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir.1996) (per curiam), overruled in part by United States v. Broussard, 611 F.3d 1069 (9th Cir.2010). Under the Carpenter approach, courts were required to discern what would be the “most nearly analogous offense” to the particular contempt at issue, and then classify the contempt based on the applicable Guidelines sentencing range for the offense. Id. at 1285. The Ninth Circuit reasoned that “[t]he applicable Guidelines range [was] directly linked to the severity of the offense and provide[d] the best analogy to the classification scheme” as it “focuse[d] on the upper limit of the district judge’s discretion, classifying the crime according to the maximum sentence the judge was authorized to impose rather than the sentence actually imposed.” Id. After United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the Guidelines advisory, the Ninth Circuit revised Carpenter such that now courts in that circuit look to the most analogous offense’s statutorily defined maximum penalty as the upper limit on a judge’s discretion. See Broussard, 611 F.3d at 1072. However, we think the concerns raised by the Ninth Circuit are not enough to warrant disregarding the plain language of the classification scheme Congress set forth in 18 U.S.C. § 3559(a). The Ninth Circuit does not assert that the text of either the criminal contempt statute or § 3559(a)’s classification scheme is ambiguous. See Broussard, 611 F.3d at 1071-72 (“Because criminal contempt has no statutory maximum, sentence, 18 U.S.C. § 401, under a literal reading of the classification statute, it would be a Class A felony.”). Unlike the Ninth Circuit, however, we do not find that classifying criminal contempt as a Class A felony is so unreasonable as to be “patently absurd.” See Fernandez, 722 F.3d at 10. Rather, in agreement with the Supreme Court, we find it not absurd for Congress to have considered the broad power of contempt “essential to ensuring that the" }, { "docid": "20695819", "title": "", "text": "Class A felony for the purposes of 18 U.S.C. § 3559(a). We explain below. The text of the criminal contempt statute, 18 U.S.C. § 401, does not include a maximum term of imprisonment. An abundance of case law suggests that, in such a situation, the court has wide discretion in imposing a sentence, including up to life imprisonment. See, e.g., United States v. Ortiz-Garcia, 665 F.3d 279, 285 (1st Cir.2011) (joining all sister circuits in finding that the maximum penalty under 18 U.S.C. § 924(c)(1)(A), which lacks a statutory maximum, is life imprisonment). The rationale for this reading was well stated in United States v. Turner, 389 F.3d 111 (4th Cir.2004): “[T]he sensible rule of statutory construction [is that] the absence of a specified maximum simply means that the maximum is life imprisonment. By declining to limit the penalty, Congress gives maximum discretion to the sentencing court,” id., at 120. The Supreme Court’s reading of the contempt statute’s language further supports this view. See Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (explaining that, through the criminal contempt statute, Congress “has authorized courts to impose penalties but has not placed any specific limits on their discretion”). Under the plain reading of the statute, the maximum penalty for criminal contempt should therefore be life imprisonment. Under 18 U.S.C. § 3559(a), that makes it a Class A felony. See 18 U.S.C. § 3559(a) (providing that “[a]n offense that is not specifically classified by a. letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is — (1) life imprisonment, or if the maximum penalty is death, as a Class A felony”). We generally do not depart from a statute’s plain language “absent either undeniable textual ambiguity, or some other extraordinary consideration, such as the prospect of yielding a patently absurd result.” United States v. Fernandez, 722 F.3d 1, 10 (1st Cir.2013) (quoting Pritzker v. Yari, 42 F.3d 53, 67-68 (1st Cir.1994)). We are aware a Ninth Circuit panel has decided that it would be “unreasonable” to conclude that Congress" }, { "docid": "19803430", "title": "", "text": "and United States v. Carty, 520 F.3d 984, 991 n. 5 (9th Cir.2008) (en banc). The guidelines remain an important consideration, but “the maximum sentence the judge [i]s authorized to impose,” Carpenter, 91 F.3d at 1285 (emphasis omitted), is now the statutory maximum, see, e.g., Carty, 520 F.3d at 991 (“While the Guidelines are to be respectfully considered, they are one factor among the § 3553(a) factors that are to be taken into account in arriving at an appropriate sentence.”). We are required to follow circuit precedent, but in the face of intervening Supreme Court and en banc opinions, “a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). This is particularly true for sentencing cases from the mandatory-guidelines era, because the court sitting en banc has held that “[pjrior cases are overruled to the extent they are inconsistent with Rita, Gall, Kimbrough, or this opinion.” Carty, 520 F.3d at 991 n. 5. We therefore must revise the Carpenter rule in light of Booker and its progeny. The basic rule of Carpenter remains in place: The severity of contempt violations for purposes of 18 U.S.C. § 3559(a) turns on the most analogous underlying offense. Carpenter, 91 F.3d at 1285. But judges are no longer limited to the maximum guidelines sentence for that offense; instead, the statutory maximum is now the “upper limit of the district judge’s discretion.” Id. Our holding adapts Carpenter’s overarching principle — that the upper end of the district judge’s discretion is what matters — to a regime in which the statute of conviction, rather than the sentencing guidelines, sets the upper limit on the district judge’s discretion. The district judge here analogized Broussard’s conviction to “escape” under 18 U.S.C. § 751, which for Broussard yielded a guidelines range of 30-37 months. Accordingly, Broussard argues that the judge was required to treat his contempt conviction as though its maximum sentence were 37 months, which" }, { "docid": "22778686", "title": "", "text": "contempt is properly classified a Class A felony because 18 U.S.C. § 3559(a) provides a statutory framework for the classification of offenses based upon the maximum authorized sentence, and that this framework applies even when even when a particular offense lacks a specifically named statutory maximum. Mail fraud, for example, is undoubtedly a Class C felony even though — or indeed, precisely because — the corresponding statute, 18 U.S.C. § 1341, sets a maximum prison term of 20 years and does not specifically authorize supervised release. But the government’s theory falters on this very analogy. However different may be individual instances of mail fraud, the substantive offense — the elements which make mail fraud criminal by law — are always the same, whereas the offense of criminal contempt encompasses a vast array of possible underlying substantive offenses. As at least one Court has recognized, “[n]o ceiling is imposed on the sentence for Class A felonies because Congress views all such felonies as extraordinarily serious crimes. Criminal contempts, in contrast, include a broad range of conduct, from trivial to severe.” See United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir.1996). Under the government’s interpretation, the relatively petty offense that resulted in Love’s contempt conviction — petty enough, at least, for Love to have received a mere 45-day prison sentence — could have been punished with life imprisonment if the trial court, in its discretion, wished to impose that penalty. Such an absurd sentence would raise serious proportionality concerns under the Constitution. See Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.”) (citing Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). There is no reason why Title 18 must be read to permit such a constitutionally suspect result: “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt" }, { "docid": "22778690", "title": "", "text": "all contemnors as felons.” Carpenter, 91 F.3d at 1284 (citing Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (failure to establish maximum sentence for contempt may reflect Congress’s “recognition of the scope of criminal contempt”) and U.S.S.G. § 2J1.1 comment n. 1 (rejecting any guideline range for criminal contempt “[b]e-cause misconduct constituting contempt varies significantly.”)). Although it is true that Carpenter was decided when the Sentencing Guidelines were mandatory, the logic of the decision is not impaired by the Guidelines’ recent fate. As the Ninth Circuit explained, the Guideline ranges are a useful and reasonable basis for classifying particular instances of criminal contempt because they are “directly linked to the severity of the offense[, ...] providing] the best analogy to the classification scheme set out in 18 U.S.C. § 3559.” Id. at 1285. That is to say, the Carpenter approach avoids the absurd result of branding all criminal contempts Class A felonies, while simultaneously achieving, or at least approximating, the intent of Congress. Thus Carpenter's reasoning presumably could survive even in the absence of the Guidelines themselves; in such case, a sentencing court would look to the most closely analogous offense for which federal law mandates or recommends a maximum sentence. I observe that this proposed resolution precisely mirrors the joint recommendation contained in Love’s plea agreement but rejected by the district court. In that agreement, the United States and the defendant urged the court to formulate the “sentence to be imposed” by reference to the Sentencing Guideline’s determination of the base offense level for “the most analogous offense.” . Although this Court normally declines to address the existence of error where an alleged error has been invited, it is not compelled to do so. See, e.g., Glassroth v. Moore, 335 F.3d 1282, 1289-90 (11th Cir.2003) (adopting Tenth Circuit’s holding on eviden-tiary claim but concluding \"in any event” that alleged error was invited); Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1295 (11th Cir.2002) (\"declining] to review for reversible error” where error was invited) (emphasis added); United States v. Hansen," }, { "docid": "22778688", "title": "", "text": "the latter.” Jones v. United States, 529 U.S. 848, 857, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Similarly, there is no reason why Title 18 must be read to permit results that are, if not unconstitutional under the Eighth Amendment, patently absurd. See In re International Administrative Services, Inc., 408 F.3d 689, 707-08 (11th Cir.2005) (interpreting a federal statute so as to avoid an “absurd result”); see also Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1276 (“the Supreme Court has repeatedly held that ‘[i]f possible, [a court] should avoid construing [a] statute in a way that produces ... absurd results.’ ”) (citing Dewsnup v. Timm, 502 U.S. 410, 427, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)). In United States v. Carpenter, the Ninth Circuit successfully avoided a constitutionally feeble or absurd reading of the criminal contempt statute. Like the instant case, Carpenter involved a defendant who appealed his sentence for criminal contempt, consisting of light incarceration and several years suspended release. Like Love, defendant Carpenter argued that contempt should be classified based upon the sentence actually imposed; because Carpenter’s contempt violation would have been a “petty” offense under this approach, he argued, like Love, that the court was not authorized to impose supervised release at all. Id. at 1283. The government advanced in Carpenter the same argument it raises before this Court — namely, that all criminal con-tempts are Class A felonies by virtue of the fact that no maximum penalty is indicated by statute. Id. at 1284. The Carpenter Court rejected both positions, however, holding that criminal contempt should be classified for sentencing according to the applicable Guidelines range for the most nearly analogous offense. Id. at 1285 (holding that where the Guidelines range was six to 12 months for the underlying offense, the contempt should be classified as a “Class A misdemeanor”). With regard to the government’s argument, the Court said that “[i]t would be unreasonable to conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious contempts appropriately, Congress meant to brand all contempts as serious and" }, { "docid": "22778689", "title": "", "text": "the sentence actually imposed; because Carpenter’s contempt violation would have been a “petty” offense under this approach, he argued, like Love, that the court was not authorized to impose supervised release at all. Id. at 1283. The government advanced in Carpenter the same argument it raises before this Court — namely, that all criminal con-tempts are Class A felonies by virtue of the fact that no maximum penalty is indicated by statute. Id. at 1284. The Carpenter Court rejected both positions, however, holding that criminal contempt should be classified for sentencing according to the applicable Guidelines range for the most nearly analogous offense. Id. at 1285 (holding that where the Guidelines range was six to 12 months for the underlying offense, the contempt should be classified as a “Class A misdemeanor”). With regard to the government’s argument, the Court said that “[i]t would be unreasonable to conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious contempts appropriately, Congress meant to brand all contempts as serious and all contemnors as felons.” Carpenter, 91 F.3d at 1284 (citing Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (failure to establish maximum sentence for contempt may reflect Congress’s “recognition of the scope of criminal contempt”) and U.S.S.G. § 2J1.1 comment n. 1 (rejecting any guideline range for criminal contempt “[b]e-cause misconduct constituting contempt varies significantly.”)). Although it is true that Carpenter was decided when the Sentencing Guidelines were mandatory, the logic of the decision is not impaired by the Guidelines’ recent fate. As the Ninth Circuit explained, the Guideline ranges are a useful and reasonable basis for classifying particular instances of criminal contempt because they are “directly linked to the severity of the offense[, ...] providing] the best analogy to the classification scheme set out in 18 U.S.C. § 3559.” Id. at 1285. That is to say, the Carpenter approach avoids the absurd result of branding all criminal contempts Class A felonies, while simultaneously achieving, or at least approximating, the intent of Congress. Thus Carpenter's reasoning presumably could" }, { "docid": "22778680", "title": "", "text": "in his case a misdemeanor, in light of either the applicable Guidelines range, see United States v. Carpenter, 91 F.3d 1282, 1285 (9th Cir.1996) (holding “contempt should be classified for sentencing purposes according to the applicable Guidelines range for the most nearly analogous offense”), or the actual term of incarceration he received, see Cheff, 384 U.S. at 380, 86 S.Ct. at 1526 (classifying contempt for purposes of the Sixth Amendment according to the length of incarceration imposed). He submits we should decline to read § 3559(a)(1) as automatically classifying every instance of contempt a Class A felony simply because, in the absence of an express statutory maximum term of imprisonment in § 401, the theoretical maximum term is life in prison. See Carpenter, 91 F.3d at 1284 (rejecting the contention “all criminal con-tempts should be treated as Class A felonies”). According to Love’s alternative argument, his sentence could include a maximum of only one year of supervised release under § 3583(b)(3). We do not reach the merits of Love’s arguments because we conclude Love induced or invited the ruling he now claims was error. “It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quotations omitted). “The doctrine of invited error is implicated when a party induces or invites the district court into making an error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir.1998). “Where invited error exists, it precludes a court from invoking the plain error rule and reversing.” United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.2005) (quotations omitted). Love induced or invited the district court to impose a sentence that included a term of supervised release. In his plea agreement and again at the plea colloquy, he expressly acknowledged the court could impose a term of supervised release of up to five years. At his sentencing, he did not object to a sentence including supervised release. To the contrary, Love’s counsel repeatedly requested that in lieu of additional" }, { "docid": "20695824", "title": "", "text": "been presented, and we find none, for why the felon appellation is “patently absurd,” see Fernandez, 722 F.3d at 10, we decline to adopt the approach of the Ninth Circuit. We note, as well, our holding does not reach and should not be read to suggest that classification of criminal contempt as a Class A felony for the purposes of § 3559(a) requires courts to read that classification into discrete statutory schemes. Such questions are not before us. We are also not persuaded by the decision of the Eleventh Circuit to completely forgo classifying criminal contempt and avoid setting a maximum potential punishment. See United States v. Cohn, 586 F.3d 844, 845 (11th Cir.2009) (per curiam). In Cohn, the court rejected the Ninth Circuit’s approach but reasoned that nonetheless “[ujniform classification of criminal contempt would be inconsistent with the breadth” of conduct covered by the statute. Id. at 848. Emphasizing that the Supreme Court has referred to criminal contempt as an offense “sui generis,” and that criminal contempt is unlike other crimes classified by § 3559(a) in that contempt may be charged without indictment and may be prosecuted by appointed private attorneys, the court held that criminal contempt is a “sui generis offense” that cannot be classified under § 3559(a). Id. at 848-49. We disagree. To begin, we note that the Eleventh Circuit does not suggest that under the plain reading of the contempt statute that the maximum sentence for contempt is less than life imprisonment. And we have already rejected the breadth of conduct covered by the statute as a reason to override its plain language or that of 18 U.S.C. § 3559(a). As such, we find no basis to conclude from the fact that the Supreme Court has referred to an offense as “sui generis ” that Congress could not have intended for an offense with a maximum term of life imprisonment to be classified as a Class A felony for § 3559(a) purposes. Congress may limit the courts’ discretion when addressing criminal contempt, but so far it has not chosen to do so. That contempt may be" }, { "docid": "20695820", "title": "", "text": "23 L.Ed.2d 162 (1969) (explaining that, through the criminal contempt statute, Congress “has authorized courts to impose penalties but has not placed any specific limits on their discretion”). Under the plain reading of the statute, the maximum penalty for criminal contempt should therefore be life imprisonment. Under 18 U.S.C. § 3559(a), that makes it a Class A felony. See 18 U.S.C. § 3559(a) (providing that “[a]n offense that is not specifically classified by a. letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is — (1) life imprisonment, or if the maximum penalty is death, as a Class A felony”). We generally do not depart from a statute’s plain language “absent either undeniable textual ambiguity, or some other extraordinary consideration, such as the prospect of yielding a patently absurd result.” United States v. Fernandez, 722 F.3d 1, 10 (1st Cir.2013) (quoting Pritzker v. Yari, 42 F.3d 53, 67-68 (1st Cir.1994)). We are aware a Ninth Circuit panel has decided that it would be “unreasonable” to conclude that Congress intended to classify all criminal contempts as Class A felonies because this would label “all con-tempts as serious and all contemnors as felons.” United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir.1996) (per curiam), overruled in part by United States v. Broussard, 611 F.3d 1069 (9th Cir.2010). Under the Carpenter approach, courts were required to discern what would be the “most nearly analogous offense” to the particular contempt at issue, and then classify the contempt based on the applicable Guidelines sentencing range for the offense. Id. at 1285. The Ninth Circuit reasoned that “[t]he applicable Guidelines range [was] directly linked to the severity of the offense and provide[d] the best analogy to the classification scheme” as it “focuse[d] on the upper limit of the district judge’s discretion, classifying the crime according to the maximum sentence the judge was authorized to impose rather than the sentence actually imposed.” Id. After United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the Guidelines advisory, the Ninth Circuit revised Carpenter such" }, { "docid": "10868017", "title": "", "text": "contempt, which has no statutory maximum sentence, does not fit neatly into this scheme. The government argues criminal contempt should be treated as a Class A felony or, in the alternative, classified according to the applicable Guidelines range for the most nearly analogous offense. Carpenter argues criminal contempt should be classified on the basis of the sentence actually imposed, making it an “infraction” or petty offense in this case. 18 U.S.C. §§ 3559(a)(9), 19. In the alternative, he asks us to declare it sui generis, neither a felony nor a misdemeanor. B. We reject the government’s contention that all criminal contempts should be treated as Class A felonies. Like criminal contempts, Class A felonies have no statutory maximum sentence short of life imprisonment or death. See 18 U.S.C. § 3559(a)(1). The resemblance ends there, however. No ceiling is imposed on the sentence for Class A felonies because Congress views all such felonies as extraordinarily serious crimes. Criminal contempts, in contrast, include a broad range of conduct, from trivial to severe. It would be unreasonable to conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious contempts appropriately, Congress meant to brand all contempts as serious and all contemnors as felons. See Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969) (failure to establish maximum sentence for contempt may reflect Congress’s “recognition of the scope of criminal contempt”); cf. U.S.S.G. § 2J1.1 comment n. 1 (Sentencing Commission decided against promulgating a criminal contempt guideline “[b]ecause misconduct constituting contempt varies significantly.”). Nor do we agree that criminal contempt cannot be classified at all. Carpenter’s argument is based on the holding in United States v. Holmes, 822 F.2d 481 (5th Cir. 1987), that because criminal contempt was neither a felony nor a misdemeanor, a statute authorizing fines for felonies and misdemeanors could not be applied in a criminal contempt proceeding. Id. at 493. Under this reasoning, supervised release would be unavailable however serious the contemnor’s conduct might be. Holmes is undercut by the many cases indicating criminal contempt" }, { "docid": "10868016", "title": "", "text": "severity of the crime: Except as otherwise provided, the authorized terms of supervised release are— (1) for a Class A or Class B felony, not more than five years; (2) for a Class C or Class D felony, not more than three years; and (3) for a Class E felony, or for a misdemeanor (other than a petty offense), not more than one year. 18 U.S.C. § 3583(b). Special assessments are mandatory. Like terms of supervised release, they increase with the severity of the crime: $5 for infractions and Class C misdemeanors, $10 for Class B misdemeanors, $25 for Class A misdemeanors, and $50 for felonies. See 18 U.S.C. § 3013(a)(1)(A) (misdemeanors); § 3013(a)(2)(A) (felonies). Under the literal terms of these statutes, the special assessment and term of supervised release imposed in this case could only be imposed if the offense is classified as a felony. Most federal crimes are classified as felonies, misdemeanors or petty offenses on the basis of the maximum sentence that can be imposed. See 18 U.S.C. §§ 19, 3559(a). Criminal contempt, which has no statutory maximum sentence, does not fit neatly into this scheme. The government argues criminal contempt should be treated as a Class A felony or, in the alternative, classified according to the applicable Guidelines range for the most nearly analogous offense. Carpenter argues criminal contempt should be classified on the basis of the sentence actually imposed, making it an “infraction” or petty offense in this case. 18 U.S.C. §§ 3559(a)(9), 19. In the alternative, he asks us to declare it sui generis, neither a felony nor a misdemeanor. B. We reject the government’s contention that all criminal contempts should be treated as Class A felonies. Like criminal contempts, Class A felonies have no statutory maximum sentence short of life imprisonment or death. See 18 U.S.C. § 3559(a)(1). The resemblance ends there, however. No ceiling is imposed on the sentence for Class A felonies because Congress views all such felonies as extraordinarily serious crimes. Criminal contempts, in contrast, include a broad range of conduct, from trivial to severe. It would be unreasonable to" }, { "docid": "19803431", "title": "", "text": "Kimbrough, or this opinion.” Carty, 520 F.3d at 991 n. 5. We therefore must revise the Carpenter rule in light of Booker and its progeny. The basic rule of Carpenter remains in place: The severity of contempt violations for purposes of 18 U.S.C. § 3559(a) turns on the most analogous underlying offense. Carpenter, 91 F.3d at 1285. But judges are no longer limited to the maximum guidelines sentence for that offense; instead, the statutory maximum is now the “upper limit of the district judge’s discretion.” Id. Our holding adapts Carpenter’s overarching principle — that the upper end of the district judge’s discretion is what matters — to a regime in which the statute of conviction, rather than the sentencing guidelines, sets the upper limit on the district judge’s discretion. The district judge here analogized Broussard’s conviction to “escape” under 18 U.S.C. § 751, which for Broussard yielded a guidelines range of 30-37 months. Accordingly, Broussard argues that the judge was required to treat his contempt conviction as though its maximum sentence were 37 months, which would make it a Class E felony. 18 U.S.C. § 3559(a)(5). If Broussard were right, then the district judge would only have been authorized to impose a one-year total sentence, and exceeded her authority by imposing two years of imprisonment and one year of supervised release on that count. 18 U.S.C. § 3583(b)(3), (e)(3), (h). But, for the reasons explained above, Broussard is not right. In determining the class of felony for purposes of 18 U.S.C. § 3559(a) we look to the statutory maximum, not the guidelines maximum. The statutory maximum sentence for escape is five years, 18 U.S.C. § 751, which makes it a Class D felony, 18 U.S.C. § 3559(a)(4). The maximum sentence for revocation of supervised release when the underlying offense is a Class D felony is three years, with up to two of those years in prison. 18 U.S.C. § 3583(b)(2), (e)(3), (h). Thus, the judge did not exceed her authority by imposing two years of imprisonment and one year of supervised release on the basis of Broussard’s prior contempt conviction." }, { "docid": "22778679", "title": "", "text": "release for a violation of § 401. He points out § 401 itself does not authorize supervised release; rather, the statute provides the court may punish contempt by “fine or imprisonment, or both.” Although he acknowledges 18 U.S.C. § 3583 authorizes supervised release for most offenses, he contends the statute is inapplicable to criminal contempt because it mentions only felonies and misdemeanors, and contempt is an offense mi generis, neither felony nor misdemeanor. See Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) (noting contempt is an offense sui generis); see also United States v. Holmes, 822 F.2d 481, 493-94 (5th Cir.1987) (holding a statute authorizing fines for felonies or misdemeanors was inapplicable to criminal contempt because contempt is neither a felony nor a misdemeanor). Alternatively, Love argues the maximum term of supervised release he could receive is one year. He contends that if contempt can be classified as a felony or a misdemeanor pursuant to the offense classification scheme set forth in 18 U.S.C. § 3559(a), it is in his case a misdemeanor, in light of either the applicable Guidelines range, see United States v. Carpenter, 91 F.3d 1282, 1285 (9th Cir.1996) (holding “contempt should be classified for sentencing purposes according to the applicable Guidelines range for the most nearly analogous offense”), or the actual term of incarceration he received, see Cheff, 384 U.S. at 380, 86 S.Ct. at 1526 (classifying contempt for purposes of the Sixth Amendment according to the length of incarceration imposed). He submits we should decline to read § 3559(a)(1) as automatically classifying every instance of contempt a Class A felony simply because, in the absence of an express statutory maximum term of imprisonment in § 401, the theoretical maximum term is life in prison. See Carpenter, 91 F.3d at 1284 (rejecting the contention “all criminal con-tempts should be treated as Class A felonies”). According to Love’s alternative argument, his sentence could include a maximum of only one year of supervised release under § 3583(b)(3). We do not reach the merits of Love’s arguments because we conclude Love induced" }, { "docid": "10868018", "title": "", "text": "conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious contempts appropriately, Congress meant to brand all contempts as serious and all contemnors as felons. See Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969) (failure to establish maximum sentence for contempt may reflect Congress’s “recognition of the scope of criminal contempt”); cf. U.S.S.G. § 2J1.1 comment n. 1 (Sentencing Commission decided against promulgating a criminal contempt guideline “[b]ecause misconduct constituting contempt varies significantly.”). Nor do we agree that criminal contempt cannot be classified at all. Carpenter’s argument is based on the holding in United States v. Holmes, 822 F.2d 481 (5th Cir. 1987), that because criminal contempt was neither a felony nor a misdemeanor, a statute authorizing fines for felonies and misdemeanors could not be applied in a criminal contempt proceeding. Id. at 493. Under this reasoning, supervised release would be unavailable however serious the contemnor’s conduct might be. Holmes is undercut by the many cases indicating criminal contempt can be classified. See, e.g., Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701-02, 41 L.Ed.2d 897 (1974) (classifying contempt to determine whether the defendant had the right to a jury trial). Carpenter points to cases involving the constitutional right to a jury trial, applicable to “serious” offenses but not to “petty” ones. See Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 1525-26, 16 L.Ed.2d 629 (1966). In this context, the Supreme Court has held that “the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.” Frank, 395 U.S. at 149, 89 S.Ct. at 1505. Criminal contempt is classified as “serious,” and the right to a jury trial applies, only if the sentence imposed is more than six months. See Taylor, 418 U.S. at 495, 94 S.Ct. at 2701-02; Maita v. Whitmore, 508 F.2d 143, 146 (9th Cir.1974). Carpenter urges us to use this “actual sentence” approach in applying 18 U.S.C. §§ 3583 and 3013(a) to sentences for contempt. As this case demonstrates," }, { "docid": "20695823", "title": "", "text": "Judiciary has a means to vindicate its own authority without complete dependence on other Branches.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); see Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 510-11, 22 L.Ed. 205 (1873). Furthermore, we are not persuaded that Congress could not have intended to label contempt as a Class A felony because of the seriousness of the “felon” appellation. It is undoubtedly true that Congress utilizes the classification under § 3559(a) in other criminal statutes. See, e.g., 18 U.S.C. § 3013(a)(2)(A) (requiring higher special assessment fees for felonies than for misdemeanors); 18 U.S.C. § 3561 (“A defendant who has been found guilty of an offense may be sentenced to a term of probation unless — (1) the offense is a Class A or Class B felony and the defen dant is an individual”). However seemingly harsh those consequences might be, it is the choice of Congress, and not the courts, to create sentencing policy. As no argument has been presented, and we find none, for why the felon appellation is “patently absurd,” see Fernandez, 722 F.3d at 10, we decline to adopt the approach of the Ninth Circuit. We note, as well, our holding does not reach and should not be read to suggest that classification of criminal contempt as a Class A felony for the purposes of § 3559(a) requires courts to read that classification into discrete statutory schemes. Such questions are not before us. We are also not persuaded by the decision of the Eleventh Circuit to completely forgo classifying criminal contempt and avoid setting a maximum potential punishment. See United States v. Cohn, 586 F.3d 844, 845 (11th Cir.2009) (per curiam). In Cohn, the court rejected the Ninth Circuit’s approach but reasoned that nonetheless “[ujniform classification of criminal contempt would be inconsistent with the breadth” of conduct covered by the statute. Id. at 848. Emphasizing that the Supreme Court has referred to criminal contempt as an offense “sui generis,” and that criminal contempt is unlike other crimes classified by §" }, { "docid": "10868020", "title": "", "text": "however, the actual sentence may not adequately reflect the severity of the eontemnor’s conduct. As the government notes, the district judge granted a downward departure based on a mitigating factor-time already served for civil contempt-that had no relevance to the seriousness of Carpenter’s contempt. Having canvassed the available alternatives, we conclude that criminal contempt should be classified for sentencing purposes according to the applicable Guidelines range for the most nearly analogous offense. The applicable Guidelines range is directly linked to the severity of the offense and provides the best analogy to the classification scheme set out in 18 U.S.C. § 3559. Like § 3559, the Guidelines range focuses on the upper limit of the district judge’s discretion, classifying the crime according to the maximum sentence the judge was authorized to impose rather than the sentence actually imposed. And because the district judge must choose which guideline to apply in criminal contempt cases, see U.S.S.G. §§ 2J1.1, 2X5.1, the sentencing range reflects the judge’s assessment of the severity of the contemnor’s conduct. III. The district judge found obstruction of justice to be the most nearly analogous offense and therefore established a Guidelines range of 6-12 months. Under the classification scheme developed by Congress, Carpenter’s contempt conviction is therefore a Class A misdemeanor. See 18 U.S.C. § 3559(a)(6). As such, it is subject to a $25 special assessment and no more than one year of supervised release. See 18 U.S.C. § 3583(b)(3); § 3013(a)(1)(A)(iii). Accordingly, we vacate Carpenter’s term of supervised release and special assessment and remand for resentencing. REMANDED. . The government moved for a downward departure based on Carpenter’s substantial assistance. However, in its statement of reasons, the district court indicated the departure was granted because the Guidelines did not take into account the eight months Carpenter had already served for civil contempt. . An earlier appeal was dismissed because Carpenter’s counsel failed to file a timely notice of appeal from the sentence. Carpenter sought a writ of habeas corpus alleging ineffective assistance of counsel. The habeas petition was granted and the district court entered a new judgment, from which" } ]

[ { "docid": "19012446", "title": "", "text": "SANBORN, Circuit Judge. These are appeals from two judgments of conviction entered July 30, 1954, on the verdicts of a jury finding the defendant, Page, guilty under two counts of a three-count indictment charging violations of the narcotic laws of the United States, and guilty under a second indictment charging him with possession of an unregistered sawed-off, twelve gauge, double barreled shotgun, with barrels less than eighteen inches in length; this in violation of § 3261(b) of 26 U.S.C. The indictments had been consolidated for trial. Page was sentenced to five years’ imprisonment under the first indictment and to five years’ imprisonment under the second indictment, the sentences to be served consecutively. Notices of appeal were filed by Page, but he was denied leave to proceed on appeal in forma pauperis. The Supreme Court on March 23,1959, directed “reconsideration of petitioner’s [Page’s] right to appeal in forma pauperis from his 1954 conviction on the basis of a transcript of the record at the trial.” 359 U.S. 116, 79 S.Ct. 730, 3 L.Ed.2d 674. In compliance with the mandate of that Court, we directed the United States Attorney to procure, at Government expense, a transcript of the evidence and proceedings at the trial of Page, and to serve a copy upon counsel whom we appointed to represent him in connection with his motion for leave to prosecute his appeals as a poor person despite the certificate of the trial judge that they were not taken in good faith. We requested counsel, so appointed, to file with this Court a copy of the trial record and a report pointing out in what respects the trial judge, who had denied Page leave .to appeal as a poor person,, erred in certifying that the appeals were not taken in good faith. The history of. Page’s case and the order of this Court, appear in 268 F.2d 251. Mr. Morris A. Shenker, one of court-appointed counsel for Page, in the report and in his supporting brief raises three, points which he believes are not frivolous, namely: 1. The sentence under the second indictment (possession of" } ]

[ { "docid": "3292920", "title": "", "text": "this motion because Deckard was not yet serving that sentence. Heflin v. United States, 358 U.S. 415, 417-418, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). The court, however, suggested that the relief sought by the petitioner might appropriately be considered under an application for a writ of error coram nobis. Deckard responded by filing an application. When it, too, was denied the present appeal followed. Judge Meredith in his memorandum, see pp. 565-566 of 260 F.Supp., sensed certain personal aspects of Deckard’s predicament. And he went on to observe, “Petitioner’s position is not necessarily without merit”. He concluded, however, that, because of this court’s refusal, in Page v. United States, supra, to pass on the constitutional issue, the petition for the writ of error coram nobis must be denied. Coram nobis appears to be the appropriate remedy for the relief Deckard seeks. Johnson v. United States, 344 F.2d 401, 410-411 (5 Cir. 1965); Kiger v. United States, 315 F.2d 778, 779 (7 Cir. 1963), cert, denied 375 U.S. 924, 84 S.Ct. 270, 11 L.Ed.2d 166; McDonald v. United States, 356 F.2d 980, 981 (10 Cir. 1966), cert, denied 385 U.S. 936, 87 S.Ct. 298, 17 L.Ed.2d 216. We are to bear in mind, however, that “error coram nobis relief should not be granted except under compelling circumstances”, and that the writ “was designed only to correct errors ‘of the most fundamental character’ ”. Gajewski v. United States, 368 F.2d 533, 534 (8 Cir. 1966), cert, denied 386 U.S. 913, 87 S.Ct. 865, 17 L.Ed.2d 786; United States v. Morgan, 346 U.S. 502, 511-512, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Azzone v. United States, 341 F.2d 417, 418 (8 Cir. 1965), cert, denied 381 U.S. 943, 85 S.Ct. 1782, 14 L.Ed.2d 706; Booker v. State of Arkansas, 380 F.2d 240 (8 Cir. 1967). In Page v. United States, supra, 282 F.2d 807, the defendant appealed from multiple convictions. Two of these were narcotics violations. The third was a violation of § 3261(b) of the Internal Revenue Code of 1939. Section 3261(b) of the 1939 Code is the counterpart of and," }, { "docid": "1976326", "title": "", "text": "and Federal Rule 35 relates to situations where only the sentence, not the conviction, is under attack. See Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), Johnson v. United States, 334 F.2d 880 (6 Cir. 1964); Red-field v. United States, 315 F.2d 76 (9 Cir. 1963). Thus, petitioner brings this action for the extraordinary writ of error coram nobis charging that the statute, 26 U.S.C. § 5841, under which he was convicted in cause No. 58 Cr 287(1) is unconstitutional. Petitioner charges, in essence, that 26 U.S.C. § 5841 requires all persons to whom it applies to incriminate themselves by registering as possessors of firearms. The statute requires every person possessing a “firearm” to register. It states that no person shall be required to register who acquires his firearm in specified ways covered by the chapter, if the chapter provisions in regard to such firearms have been satisfied. In other words, one need not register unless he has broken one of the provisions of the chapter. Petitioner’s position is not necessarily without merit. The Seventh and Ninth Circuits have held that 26 U.S.C. § 5841 requires self-incrimination to such an extent that it is unconstitutional as a violation of the Fifth Amendment. Dugan v. United States, 341 F.2d 85 (7 Cir. 1965); Russell v. United States, 306 F.2d 402 (9 Cir. 1962). However, our own Eighth Circuit has declined to pass on the statute’s constitutionality until the Supreme Court does so with uniform binding effect. Page v. United States, 282 F.2d 807 (8 Cir. 1960); and see Sipes v. United States, 321 F.2d 174 (8 Cir. 1963). This Court must, therefore, deny the motion for writ of error coram nobis. Petitioner’s motion for credit of time cannot be treated by this Court. Habeas corpus is the only proper judicial vehicle for the raising of such a motion, and it can be brought only in the judicial district where the petitioner is being held. 28 U.S.C. § 2241; United States v. Welch, 189 F.Supp. 517 (W.D.Ark. 1960); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct." }, { "docid": "3292933", "title": "", "text": "or about the 3rd day of October, 1958, in the City of St. Louis, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri, IVAN LOWELL DECKARD, the defendant, did have in his possession a certain firearm, to wit, one .45 caliber Thompson submachine gun, bearing serial number 428539, and which said firearm had not been registered with the Secretary of the Treasury of the United States or his delegate, as required by law; he, the said defendant, being a person required by law to register said firearm with the Secretary of the Treasury of the United States or his delegate, together with the number or other mark identifying such firearm, the defendant’s name, address, place where such firearm is usually kept, and the place of defendant’s business or employment. “In violation of Section 5841, Title 26, United States Code.” . 26 U.S.C. § 5851. Possessing firearms illegally It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury." }, { "docid": "21971307", "title": "", "text": "was held wholly unconstitutional and those convicted under it were permitted to collaterally attack their convictions. See Warring v. Colpoys, 74 U.S.App.D.C. 303, 122 F.2d 642, 647, 136 A.L.R. 1025 (1941). It also distinguishes Deckard v. United States, 381 F.2d 77 (8th Cir. 1967), decided before Haynes, which held the section requiring registration of firearms, § 5841, unconstitutional, and permitted collateral attack without discussing the issue of retroactivity. The petitioner was not prosecuted under a void statute; rather it is claimed that the procedures used in his conviction violated his right to due process in accordance with constitutional standards and safeguards. Thus, the rules on retroactivity permit a finding that the new constitutional standard will be applied prospectively only. The issue of the retroactivity of the Haynes decision has been previously decided by three district courts, including Connecticut, and the comparable issue of the retroactivity of Marchetti and Grosso by one court. Stoney v. United States, (E.D.Mo.1968), 302 F.Supp. 145; Desimone v. United States, (1968), 303 F. Supp. 406; Wainwright v. United States, 289 F.Supp. 820 (E.D.Tenn. July 17, 1968); Graham v. Blackwell, 291 F. Supp. 761 (1968) (on the retroactivity of the gambling cases). In each instance the courts have held these Supreme Court decisions were not retroactive. The first criterion to be considered is the purpose of the constitutional rule in Haynes and whether those purposes are best served by prospective application. The constitutional infirmity is particularly analogous to that in Tehan v. Unit ed States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), which held that Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) was not retroactive. The latter case concerned the rule then prevailing in several states, which permitted a prosecutor to adversely comment upon the defendant’s failure to take the witness stand in his own defense. In the registration cases, the defendant by exercising his constitutional privilege against self-incrimination failed to register and thus violated federal law. The Supreme Court held in Tehan that because there was no fundamental danger that the fact-finding process was" }, { "docid": "21971306", "title": "", "text": "“(1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U.S. 293 at 297, 87 S.Ct. 1967 at 1970, 18 L.Ed.2d 1199 (1967). The threshold question to be resolved is whether the Supreme Court’s rules on retroactivity are applicable here. The defendant in Haynes successfully attacked the statute under which he was convicted, while the Supreme Court decisions determining retroactivity have been concerned for the most part with the procedural aspects of the trial. However, the statute, 26 U.S.C. § 5851, was not held unconstitutional in Haynes. The criminal nature of the possession of the enumerated weapons remained; it was still a crime, even after Haynes, to possess an unregistered weapon. The Court only held that the privilege against self-incrimination was a procedural bar, a full defense to the prosecution. Haynes must be distinguished from those cases where the statute was held wholly unconstitutional and those convicted under it were permitted to collaterally attack their convictions. See Warring v. Colpoys, 74 U.S.App.D.C. 303, 122 F.2d 642, 647, 136 A.L.R. 1025 (1941). It also distinguishes Deckard v. United States, 381 F.2d 77 (8th Cir. 1967), decided before Haynes, which held the section requiring registration of firearms, § 5841, unconstitutional, and permitted collateral attack without discussing the issue of retroactivity. The petitioner was not prosecuted under a void statute; rather it is claimed that the procedures used in his conviction violated his right to due process in accordance with constitutional standards and safeguards. Thus, the rules on retroactivity permit a finding that the new constitutional standard will be applied prospectively only. The issue of the retroactivity of the Haynes decision has been previously decided by three district courts, including Connecticut, and the comparable issue of the retroactivity of Marchetti and Grosso by one court. Stoney v. United States, (E.D.Mo.1968), 302 F.Supp. 145; Desimone v. United States, (1968), 303 F. Supp. 406; Wainwright v. United States, 289 F.Supp." }, { "docid": "3292930", "title": "", "text": "against that defendant, almost compels our holding that the Deekard information is vulnerable. We do so hold. Although the Supreme Court still has not passed directly upon the validity of the registration provisions of § 5841, the Court’s attitude, we feel, is indicated by its holding in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 77-79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). There the Court held that agency orders requiring individuals to complete and file registration statements called for by § 8(a) and (c) of the Subversive Activities Control Act of 1950, 50 U.S.C. § 787(a) and (c), would violate the Fifth Amendment’s self-incrimination clause because such admission of Communist Party membership might be used as a lead to or evidence in a criminal prosecution. See Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 107-109, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). We also note with interest the pending grants of certiorari in cases which raise again the question of alleged self-ineriminating features of the federal wagering tax statutes. United States v. Costello, 352 F.2d 848 (2 Cir. 1965), cert, granted 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205; United States v. Marchetti, 352 F.2d 848 (2 Cir. 1965), cert, granted 385 U.S. 1000, 87 S.Ct. 698, 17 L.Ed.2d 540. We recognize that the facts here were of such a nature that Deekard apparently could have been charged under § 5851 with possession of a firearm made in violation of § 5821. This was the Sipes situation. But Deekard was not so charged. The validity of the information must be tested by what it charges, not by what it might have charged. Judge Meredith was fully justified in denying Deckard’s motion on what he felt were the implications of Page v. United States, supra. But Page was decided in 1960 which, although only seven years ago, is an early date so far as judicial analysis of § 5841 is concerned. Since then, as we have pointed out, § 5841 has been under consistently successful attack. In view of this authority, we would" }, { "docid": "3292918", "title": "", "text": "BLACKMUN, Circuit Judge. Ivan L. Deckard, by his petition for a writ of error coram nobis, seeks to void his 1961 conviction for a violation of 26 U.S.C. § 5841. This statute is the mandatory registration provision of the National Firearms Act, now a part of the Internal Revenue Code of 1954, as amended. Deckard claims that the statute, as applied to him, violates his Fifth Amendment guaranty against self-incrimination. Judge Meredith denied Deckard’s petition. His supporting memorandum is reported as Deckard v. United States, 260 F.Supp. 565 (E.D.Mo. 1966). This court touched upon the constitutional issue, but did not decide it, in Page v. United States, 282 F.2d 807, 810-811 (8 Cir. 1960), and in Sipes v. United States, 321 F.2d 174, 178 (8 Cir. 1963), cert, denied 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150. By three separate informations Deckard was charged with respective violations of 18 U.S.C. § 2314 (interstate transportation of a forged security), of 18 U.S.C. § 751 (escape), and of 26 U.S. C. § 5841 (possession of an unregistered .45 caliber submachine gun). He convicted himself by pleas of guilty to all three charges. On February 1, 1961, the late Judge Weber imposed sentences of five years on each of the § 2314 and § 751 violations. These sentences were to be served consecutively to one another but concurrently with a 35-year term Deckard was then serving under a state conviction in the Missouri state penitentiary. Also on February 1, 1961, the late Judge Moore imposed a four year sentence on the firearms charge. This was to be served consecutively to those sentences imposed by Judge Weber and by the state court. In his present petition Deckard asserts that he was paroled from the Missouri state penitentiary on April 16, 1966. He is now in federal custody (Atlanta). The first Weber sentence has been completed and he is approaching completion of the second. Service of the Moore sentence has not begun. After being taken into federal custody Deckard filed a motion under 28 U.S.C. § 2255 attacking the firearms sentence. Judge Meredith denied" }, { "docid": "3292929", "title": "", "text": "his possession a certain firearm” and thus used words relatable to § 5851. But the violation charged was not of § 5851 but only of the registration § 5841. In all the cases where the indictment or information has been invalidated, there has been a similar reference to possession but there, too, the charge has been directed to the registration section and not to § 5851 or some other unoffending provision of the Act. Thus, in McCann v. United States, supra, the information, p. 753 of 217 F.Supp., charged that the defendant “did have in his possession a certain firearm * * * in violation of Title 26 U.S.C. Section 5841”. We necessarily conclude, therefore, that the information against Deckard, if we are to follow the authority of Dugan, Lovelace, McCann and Fleish, is constitutionally vulnerable because it rests on § 5841 which, by its registration provisions, calls for self-incrimination. We feel that we cannot avoid the authority of these uniformly decided cases. Indeed, the distinction we drew in Sipes, where we upheld the information against that defendant, almost compels our holding that the Deekard information is vulnerable. We do so hold. Although the Supreme Court still has not passed directly upon the validity of the registration provisions of § 5841, the Court’s attitude, we feel, is indicated by its holding in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 77-79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). There the Court held that agency orders requiring individuals to complete and file registration statements called for by § 8(a) and (c) of the Subversive Activities Control Act of 1950, 50 U.S.C. § 787(a) and (c), would violate the Fifth Amendment’s self-incrimination clause because such admission of Communist Party membership might be used as a lead to or evidence in a criminal prosecution. See Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 107-109, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). We also note with interest the pending grants of certiorari in cases which raise again the question of alleged self-ineriminating features of the federal wagering tax" }, { "docid": "3292922", "title": "", "text": "with minor exceptions of no pertinence here, is identical with the present § 5841. This court affirmed the narcotics convictions but reversed, with one judge dissenting, the conviction under § 3261(b). The reversal rested on search and seizure grounds and, with the weapon ruled inadmissible, on the inadequacy of the evidence to sustain the conviction. Court-appointed appellate counsel had also raised the question of Fifth Amendment unconstitutionality of § 3261(b). This constitutional issue had not been raised at the trial. This court’s panel discussed plain error under Rule 52(b), Fed.R.Crim.P., in the context of the case but unanimously held, pp. 810-811 of 282 F.2d: “We are convinced that the exercise of a sound judicial discretion requires that, in the instant cases, we decline to pass upon the constitutionality of the National Firearms Act requiring the registration by possessors, such as Page, of sawed-off shotguns — useless for any lawful purpose. The constitutional question has been ably briefed. If the Act, in so far as applicable here, is to be declared invalid, that should, we think, be done by the Supreme Court on certiorari — so that the declaration will have nationwide effect and acceptance. The Act in question has thus far stood up well under attack (United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772) and is certainly not so plainly unconstitutional (United States v. Cumbee, D.C. Minn., 84 F.Supp. 390, 392) that the failure of the trial court or this Court to hold it so can be regarded as a plain error or a culpable neglect of judicial duty.” Thus, as Judge Meredith observed in his memorandum denying Deckard’s petition, p. 566 of 260 F.Supp., “our own Eighth Circuit has declined to pass on the statute’s constitutionality until the Supreme Court does so with uniform binding effect”. The Judge’s action was in accord with what this court did in Page in 1960. In Sipes v. United States, supra, 321 F.2d 174, the defendant was charged with a violation, not of § 5841," }, { "docid": "3292928", "title": "", "text": "2d 1347; Richardson v. United States, 342 F.2d 417 (5 Cir. 1965); Pruitt v. United States, 364 F.2d 826 (6 Cir. 1966); United States v. Forgett, 349 F.2d 601 (6 Cir. 1965), cert, denied 383 U.S. 926, 86 S.Ct. 929, 15 L.Ed.2d 845; Castellano v. United States, 350 F.2d 852 (10 Cir. 1965), cert, denied 383 U.S. 949, 86 S.Ct. 1207, 16 L.Ed.2d 211; Taylor v. United States, 333 F.2d 721 (10 Cir. 1964); Mares v. United States, supra, 319 F.2d 71, 73 (10 Cir. 1963); Hazelwood v. United States, 208 F.Supp. 622 (N.D.Cal.1962) ; Capooth v. United States, 238 F.Supp. 583 (S.D. Texas 1965). The Ninth Circuit itself, as we noted in Sipes, p. 178 of 321 F.2d, has drawn this distinction. Frye v. United States, 315 F.2d 491, 494 (9 Cir. 1963), cert, denied 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76; Starks v. United States, 316 F.2d 45, 46 (9 Cir. 1963). It is true, of course, that the information against Deekard alleged possession. It charged that he “did have in his possession a certain firearm” and thus used words relatable to § 5851. But the violation charged was not of § 5851 but only of the registration § 5841. In all the cases where the indictment or information has been invalidated, there has been a similar reference to possession but there, too, the charge has been directed to the registration section and not to § 5851 or some other unoffending provision of the Act. Thus, in McCann v. United States, supra, the information, p. 753 of 217 F.Supp., charged that the defendant “did have in his possession a certain firearm * * * in violation of Title 26 U.S.C. Section 5841”. We necessarily conclude, therefore, that the information against Deckard, if we are to follow the authority of Dugan, Lovelace, McCann and Fleish, is constitutionally vulnerable because it rests on § 5841 which, by its registration provisions, calls for self-incrimination. We feel that we cannot avoid the authority of these uniformly decided cases. Indeed, the distinction we drew in Sipes, where we upheld the information" }, { "docid": "3292932", "title": "", "text": "no longer be justified in declining to decide the Fifth Amendment issue. The standards of “compelling circumstances” and “fundamental character”, noted above for the availability of coram nobis relief, have obviously been met by Deekard. Reversed and remanded. Our mandate shall issue forthwith. . 26 U.S.C. § 5841. Registration of persons in general Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if the provisions which applied thereto were complied with. . “The United States Attorney charges: “That on or about the 3rd day of October, 1958, in the City of St. Louis, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri, IVAN LOWELL DECKARD, the defendant, did have in his possession a certain firearm, to wit, one .45 caliber Thompson submachine gun, bearing serial number 428539, and which said firearm had not been registered with the Secretary of the Treasury of the United States or his delegate, as required by law; he, the said defendant, being a person required by law to register said firearm with the Secretary of the Treasury of the United States or his delegate, together with the number or other mark identifying such firearm, the defendant’s name, address, place where such firearm is usually kept, and the place of defendant’s business or employment. “In violation of Section 5841, Title 26, United States Code.” . 26 U.S.C. § 5851. Possessing firearms illegally It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation" }, { "docid": "21371703", "title": "", "text": "ARRAJ, District Judge. Appellant contests the denial of his motion under 28 U.S.C. § 2255 to vacate the sentence imposed following his plea of guilty to violations of 26 U.S.C. § 5821 and 26 U.S.C. § 5851. He argued below, relying on Russell v. United States, 306 F.2d 402 (9th Cir. 1962) that compliance with the two statutes would compel him to incriminate himself in violation of the Fifth Amendment. Counsel appointed by this Court to prosecute his appeal abandoned the constitutional argument, contending that the Court below “erred by misinterpreting the elements of proof necessary for a conviction under the information.” The logic of this argument is “that had the Defendant been apprised of the proper burden placed upon the Government to-sustain a conviction under the information, he would not have plead guilty.” Leaving aside the question whether the latter argument is properly before the Court, not having been raised below, we proceed to consider the merits of both questions. The Russell case, which held that 26 U.S.C. § 5841 was unconstitutional because it compelled self-incrimination by requiring the registration of illegal firearms, raised a brief flurry of cases in the Reports, all of which have been examined. The case has been followed in two District Court eases in this Circuit, once over the opposition of the Government, McCann v. United States, 217 F.Supp. 751 (D.Colo.1963), and once on the motion of the Government, United States v. Mares, 208 F.Supp. 550 (D.Colo.1962). The other cases in which it has been raised, distinguished it, as the District Court here did below, on the grounds that the offense charged was not the failure to register an illegal firearm, but the possession of an unregistered (illegal) firearm. It is notable that this distinction has been observed in the Ninth Circuit which decided the Russell ease. See Frye v. United States, 315 F.2d 491 (9th Cir. 1963) and Starks v. United States, 316 F.2d 45 (9th Cir. 1963). Indeed, as Judge Blaekmun of the Eighth Circuit noted in Sipes v. United States, 321 F.2d 174, 178 (8th Cir. 1963), the distinction is intimated" }, { "docid": "13620041", "title": "", "text": "conduct (or present status) which was actually or presumptively unlawful.” The court went on to say that if the conviction and sentence had been under § 5851 “the constitutional question * * * might not [have been] presented,” and that, “The questioned count would charge a crime under section 5851, as that statute reads today,” that is, after the 1958 amendment. The Ninth Circuit, in Frye v. United States, 9 Cir., 315 F.2d 491, certiorari denied 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76, considered a charge of a violation of § 5851 by the possession of an unregistered firearm after the 1958 amendment and in affirming the conviction distinguished Russell on the ground that the charge was not failure to register in violation of § 5841 but rather possession of an unregistered firearm in violation of § 5851. This distinction was restated in Starks v. United States, 9 Cir., 316 F.2d 45, 46, and has been recognized by the Eighth Circuit in Sipes v. United States, 8 Cir., 321 F.2d 174, 178, certiorari denied 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150 (prosecution under § 5851 for possession of a firearm made in violation of § 5821), and by this circuit in Taylor v. United States, 10 Cir., 333 F.2d 721; Waters v. United States, 10 Cir., 328 F.2d 739; and Mares v. United States, 10 Cir., 319 F.2d 71 (all prosecutions under § 5851 for possession of a firearm made in violation of § 5821). The constitutionality of the National Firearms Act was upheld by the United States Supreme Court in Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772, and United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, but the question here raised was presented in neither of those cases. As we understand appellant’s argument it is that § 5851 incorporates § 5841 by reference; that compliance with § 5841 requires self-incrimination contrary to the Fifth Amendment; and that § 5851 must fall because of the infirmity of the section which it incorporates. Russell holds that" }, { "docid": "2977742", "title": "", "text": "PER CURIAM. This appeal is from an order of the District Court denying appellant’s motion to vacate sentence filed under Title 28, Sec. 2255, U.S.C. Appellant had entered a plea of guilty in the District Court to an indictment charging that he did possess a firearm which was not registered according to law in violation of Title 26, Sections 5851 and 5861, U.S.C. He was sentenced to imprisonment for three years and ten months. Pruitt claims that when he entered his plea of guilty, he was unaware that the section of the Code providing for registration of firearms (Title 26 U.S.C., § 5841) had been declared unconstitutional as requiring one in his situation to incriminate himself. Russell v. United States, 306 F.2d 402 (9th Cir. 1962). He also relies on Dugan v. United States, 341 F.2d 85 (7th Cir. 1965); United States v. Fleish, 227 F.Supp. 967 (D.C. Mich.1964); McCann v. United States, 217 F.Supp. 751, 752 (D.C.Colo.1963). Russell and the other eases relied on by Pruitt charged violation of the registration section, § 5841. Pruitt was charged in the present case with possession of an unregistered firearm in violation of Section 5851. Section 5861 merely prescribes the penalty. The gist of Pruitt’s offense was not that he failed to register the firearm, but that he possessed a firearm which had not been registered. This distinction was pointed out in later decisions by the Ninth Circuit, which had decided Russell. They upheld convictions under Section 5851. Frye v. United States, 315 F.2d 491 (9th Cir. 1963); Starks v. United States, 316 F.2d 45 (9th Cir. 1963). In Sipes v. United States, 821 F.2d 174 (8th Cir. 1963) the Court followed Frye and Starks. We applied the same rule to an indictment under Section 5855 charging unlawful transportation of unregistered firearms in interstate commerce. United States v. Forgett, 349 F.2d 601 (6th Cir. 1965), cert. denied, 383 U.S. 926, 86 S.Ct. 929, 15 L.Ed.2d 845 (1966). See also Lovelace v. United States, 357 F.2d 306 (5th Cir. 1966). Since Pruitt was charged with violation of Section 5851, he is not in" }, { "docid": "3292923", "title": "", "text": "be done by the Supreme Court on certiorari — so that the declaration will have nationwide effect and acceptance. The Act in question has thus far stood up well under attack (United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772) and is certainly not so plainly unconstitutional (United States v. Cumbee, D.C. Minn., 84 F.Supp. 390, 392) that the failure of the trial court or this Court to hold it so can be regarded as a plain error or a culpable neglect of judicial duty.” Thus, as Judge Meredith observed in his memorandum denying Deckard’s petition, p. 566 of 260 F.Supp., “our own Eighth Circuit has declined to pass on the statute’s constitutionality until the Supreme Court does so with uniform binding effect”. The Judge’s action was in accord with what this court did in Page in 1960. In Sipes v. United States, supra, 321 F.2d 174, the defendant was charged with a violation, not of § 5841, but of § 5851. The latter section proscribes possession of a firearm transferred, made or unregistered in violation of other sections of the Act. The particular charge against Sipes was of a violation of § 5851, namely, possession of a firearm made in violation of § 5821. His charge was not directed to failure to register as required by § 5841. Noting that the Ninth Circuit, in Russell v. United States, 306 F.2d 402 (9 Cir. 1962), had held § 5841 unconstitutional, we said, p. 178 of 321 F.2d: “We need not pass, as the Ninth Circuit was compelled to do, upon the constitutionality of § 5841. * * * No violation of that section is charged by the information against Sipes. What is charged here is a violation of § 5851 in the possession of a firearm made in violation of § 5821. * * * [I]t follows, a fortiori, that any defect which might be present in § 5841 does not render a charge under § 5851 and directed to § 5821 violative" }, { "docid": "3844660", "title": "", "text": "CASTLE, Chief Judge. On October 16, 1961, petitioner pleaded guilty to three counts charging him with interstate transportation of forged securities, in violation of 18 U.S.C. § 2314, and one count charging attempted escape from custody, in violation of 18 U.S.C. § 751. The district court sentenced de fendant to concurrent eight year prison terms on the three counts charging violation of § 2314, and a five year term on the count charging violation of § 751, the latter sentence to run concurrently with the former. The maximum term of imprisonment for conviction under § 2314 is ten years and the maximum under § 751 is five years. On March 6, 1969, petitioner filed a motion pursuant to 28 U.S.C. § 2255, asking that a credit of 117 days, representing petitioner’s pre-sentence confinement due to his inability to secure a bail bond, be deducted from his sentence. The district court denied the motion and petitioner brought this appeal. We affirm. Since the 1966 amendment of 18 U.S.C. § 3568, which requires that all time spent in pre-sentence confinement be credited to the prisoner’s sentence, is applicable only to sentences imposed after the effective date of the amendment, September 20, 1966, we must look at the law as it stood prior thereto. The leading case of United States v. Stapf, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966), held that by amending 18 U.S.C. § 3568 in 1960 to provide an automatic credit of pre-sentence time served for mandatory minimum term offenses, Congress also intended such credit to be given if the maximum sentence allowed under the law was imposed. Many other cases have followed the holding of Stapf: United States v. Smith, 379 F.2d 628 (7th Cir. 1967), cert. den. 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486; Sobell v. United States, 407 F.2d 180 (2d Cir. 1969); Dunn v. United States, 376 F.2d 191 (4th Cir. 1967); United States v. Whitfield, 411 F.2d 545 (8th Cir. 1969); Bryans v. Blackwell, 387 F.2d 764 (5th Cir. 1967); Lee v. United States, 400 F.2d 185 (9th Cir. 1968). Thus, credit for" }, { "docid": "3292931", "title": "", "text": "statutes. United States v. Costello, 352 F.2d 848 (2 Cir. 1965), cert, granted 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205; United States v. Marchetti, 352 F.2d 848 (2 Cir. 1965), cert, granted 385 U.S. 1000, 87 S.Ct. 698, 17 L.Ed.2d 540. We recognize that the facts here were of such a nature that Deekard apparently could have been charged under § 5851 with possession of a firearm made in violation of § 5821. This was the Sipes situation. But Deekard was not so charged. The validity of the information must be tested by what it charges, not by what it might have charged. Judge Meredith was fully justified in denying Deckard’s motion on what he felt were the implications of Page v. United States, supra. But Page was decided in 1960 which, although only seven years ago, is an early date so far as judicial analysis of § 5841 is concerned. Since then, as we have pointed out, § 5841 has been under consistently successful attack. In view of this authority, we would no longer be justified in declining to decide the Fifth Amendment issue. The standards of “compelling circumstances” and “fundamental character”, noted above for the availability of coram nobis relief, have obviously been met by Deekard. Reversed and remanded. Our mandate shall issue forthwith. . 26 U.S.C. § 5841. Registration of persons in general Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if the provisions which applied thereto were complied with. . “The United States Attorney charges: “That on" }, { "docid": "11813056", "title": "", "text": "PER CURIAM: Petitioner Harold Wapnick, a certified public accountant, was convicted in 1961, after a 35-day jury trial in the District Court for the Eastern District of New York, on 16 substantive counts and a conspiracy count of an indictment charging the transportation of stolen motor vehicles in interstate commerce in violation of 18 U.S.C. § 2312. This court affirmed his conviction and the denial of a motion for a new trial. United States v. Wapnick, 315 F.2d 96 (2 Cir. 1963), cert. denied, 374 U.S. 829, 83 S.Ct. 1868, 10 L.Ed.2d 1052 rehearing denied, 375 U.S. 871, 84 S.Ct. 30, 11 L.Ed. 2d 100, 383 U.S. 923, 86 S.Ct. 879, 15 L.Ed.2d 680. We have likewise affirmed two previous denials of motions for post-conviction relief. Wapnick v. United States, 355 F.2d 136 (2 Cir. 1966); Wapnick v. Chappell, 376 F.2d 853 (2 Cir. 1967). After being released from custody but while he was still on parole, Wapnick filed this further petition under 28 U.S.C. § 2255. He claimed that his trial had been fatally infected by the admission of a post-arrest statement of a co-conspirator allegedly implicating him in the crime, in violation of the rule laid down in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which -the Supreme Court has held to be applicable on collateral attack, Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). Treating the petition as one for corain nobis, United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), even though the claimed error was of law rather than of fact, cf. Deckard v. United States, 381 F.2d 77 (8 Cir. 1967), Judge Bartels denied relief. We have no occasion to consider the ruling with respect to coram nobis since parole status is “custody” within the meaning of § 2255. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). In an earlier opinion, 355 F.2d at 138, Judge Medina characterized the evidence as showing that Wapniek had masterminded “a gang of thieves in" }, { "docid": "3292919", "title": "", "text": "unregistered .45 caliber submachine gun). He convicted himself by pleas of guilty to all three charges. On February 1, 1961, the late Judge Weber imposed sentences of five years on each of the § 2314 and § 751 violations. These sentences were to be served consecutively to one another but concurrently with a 35-year term Deckard was then serving under a state conviction in the Missouri state penitentiary. Also on February 1, 1961, the late Judge Moore imposed a four year sentence on the firearms charge. This was to be served consecutively to those sentences imposed by Judge Weber and by the state court. In his present petition Deckard asserts that he was paroled from the Missouri state penitentiary on April 16, 1966. He is now in federal custody (Atlanta). The first Weber sentence has been completed and he is approaching completion of the second. Service of the Moore sentence has not begun. After being taken into federal custody Deckard filed a motion under 28 U.S.C. § 2255 attacking the firearms sentence. Judge Meredith denied this motion because Deckard was not yet serving that sentence. Heflin v. United States, 358 U.S. 415, 417-418, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). The court, however, suggested that the relief sought by the petitioner might appropriately be considered under an application for a writ of error coram nobis. Deckard responded by filing an application. When it, too, was denied the present appeal followed. Judge Meredith in his memorandum, see pp. 565-566 of 260 F.Supp., sensed certain personal aspects of Deckard’s predicament. And he went on to observe, “Petitioner’s position is not necessarily without merit”. He concluded, however, that, because of this court’s refusal, in Page v. United States, supra, to pass on the constitutional issue, the petition for the writ of error coram nobis must be denied. Coram nobis appears to be the appropriate remedy for the relief Deckard seeks. Johnson v. United States, 344 F.2d 401, 410-411 (5 Cir. 1965); Kiger v. United States, 315 F.2d 778, 779 (7 Cir. 1963), cert, denied 375 U.S. 924, 84 S.Ct. 270, 11 L.Ed.2d 166;" }, { "docid": "1976324", "title": "", "text": "MEMORANDUM MEREDITH, District Judge. This matter arises on the petition of Ivan L. Deckard for writ of error coram nobis nullifying his conviction for violation of 26 U.S.C. § 5841 (unregistered firearm) in a cause formerly before this Court and number 58 Cr 287(1). Petitioner also seeks credit for time spent in Federal custody prior to the trial in this Court of cause No. 61 Cr 24(3), in which he was convicted of violating 18 U.S.C. § 2314 (transporting forged draft). On February 1, 1961, petitioner was sentenced in these two causes and in cause No. 61 Cr 25(3) (escape). The sentences in 61 Cr 24(3) and 61 Cr 25 (3) were five years each, to run consecutively. Petitioner was sentenced to four years in 58 Cr 287(1), to run consecutively to the five-year terms. He has now served the sentence in cause No. 61 Cr 24(3) and is less than a year from the end of his service of that in 61 Cr 25(3). The four-year sentence imposed in cause No. 58 Cr 287(1) remains to be served. Petitioner will have the valuable opportunity, when he reaches the last six months of imprisonment, to participate in the work-release program of the Atlanta, Georgia, Federal Penitentiary. By working at a newly acquired trade in his last six months in prison, petitioner could acquire experience, funds, and an assured job on the outside. This is im portant to him because he has a large family to support. However, as long as the judgment in cause No. 58 Cr 287(1) remains effective and on the books of his prison record he cannot begin such a work-release program. If petitioner’s grounds for asking that the judgment be vacated are good, he will rather unfairly lose any chance to participate in this program unless he is allowed to attack the conviction prior to beginning the sentence under it. Petitioner has had an earlier motion to vacate denied in cause No. 66 C 177(2), because 28 U.S.C. § 2255 does not allow such actions when the petitioner has not yet begun to serve the sentence" } ]

[ { "docid": "22717589", "title": "", "text": "many times and recently purchased “illicit whiskey.” These statements were against the informant’s penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205 (a)(2), Title 26, United States Code, proscribes the sale, purchase, or possession of unstamped liquor. Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a “break” does not eliminate the residual risk and opprobrium of having admitted criminal conduct. Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. . But here the informant’s admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search. It may be that this informant’s out-of-cóurt declarations would not be admissible at respondent’s trial under Donnelly v. United States, 228 U. S. 243 (1913), or under Bruton v. United States, 391 U. S. 123 (1968). But Donnelly’s implication that statements against penal interest are without value and per se inadmissible hap been widely criticized; see the dissenting opinion of Mr. Justice Holmes in Donnelly, supra, at 277; 5 J. Wigmore, Evidence § 1477 (3d ed. 1940), and has been partially rejected in Rule 804 of the Proposed Rules of Evidence for the District Courts and Magistrates. More important, the issue in warrant proceedings is not guilt beyond reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises. See Brinegar v. United States, supra, at 173. Whether or not Donnelly is to survive .as a rule of evidence in federal trials, it should not be extended to warrant proceedings" } ]

[ { "docid": "22580421", "title": "", "text": "within his discretion in excluding Batt’s testimony, in view of Evans’ lack of any motivation to fake loss of memory and in light of the apparent conflict between testimony given by Evans and Batt outside of the jury’s presence as to exactly what earlier photographic identification had been made by Evans. See United States v. Insana, supra, 423 F.2d at 1170. Batt testified that Evans had selected two photos, one of Wilcox and the other of one James Sims, as the “floorman,” with Evans indicating a slight preference for Wilcox’s photo. Evans, on the other hand, testified that he had selected two photos resembling two different robbers rather than one of the robbers. The confusion thus engendered underscores the wisdom of adhering to the traditional rule, in this case at least. In any event it is apparent that the admission of Batt's testimony would not help Jenkins very much and that an insufficient showing of prejudice from its exclusion has been made. Nor is this a case like Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), where the Supreme Court reversed a criminal conviction because the trial court had refused to admit testimony by three different persons that a man named McDonald had previously confessed to the murder with which Chambers was charged. In Chambers the hearsay confessions of McDonald were “originally made . under circumstances that provided considerable assurance of their reliability.” 410 U.S. at 300, 93 S.Ct. at 1048. The three different spontaneous oral confessions made by McDonald to close acquaintances, being declarations against penal (although not against pecuniary) interest, would probably have been admissible in some jurisdictions under an exception to the hearsay rule for such declarations, see 410 U.S. at 299 n. 17, 93 S.Ct. 1038. Moreover each of the three confessions was corroborated by other evidence, including a confession in writing signed by McDonald and the testimony of an eyewitness to the killing. Here, in contrast, there was little reason to credit Evans’ prior out-of-court photographic identification of Wilcox, especially since Evans was unable to repeat it at trial and" }, { "docid": "23221545", "title": "", "text": "it on the ground that defense counsel had not warned Hamlin of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) before obtaining the statement. Since the Miranda warning is only required when there is “custodial interrogation,” however, Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. 1602; United States v. Be-kowies, 432 F.2d 8, 12 (9th Cir. 1970), the trial court excluded the statement on an incorrect basis. Nevertheless, the statement properly could have been excluded as inadmissible hearsay evidence. Appellants argue, however, that the written statement, which implicated Hamlin in illegal narcotic activity, qualified as a declaration against her penal interest. Under the current law of this Circuit, a statement is not admissible as an exception to the hearsay rule solely because it is against the penal interest of the declarant. United States v. Walling, 486 F.2d 229 (9th Cir. 1973) ; Scolari v. United States, 406 F.2d 563 (9th Cir.); cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969); see Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). Appellants, in apparent reliance on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), contend that the exception must be invoked in this case. We disagree. In Chambers, “[t]he hearsay statements involved . were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” 410 U.S. at 300, 93 S.Ct. at 1048. Here, there were not sufficient guarantees of trustworthiness to render the statement admissible. See United States v. Walling, 486 F.2d 229, 238-239 (9th Cir. 1973) ; cf. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Appellants’ forth contention is that the trial court denied them their right effectively to cross-examine the Government informant, Durden. They specifically point to the court’s permitting Durden to refuse to answer questions regarding his resident address. Although Durden disclosed his name, occupation, and business address, the trial court sustained the Government’s objection to a question regarding his residence. The Government," }, { "docid": "22580422", "title": "", "text": "S.Ct. 1038, 35 L.Ed.2d 297 (1973), where the Supreme Court reversed a criminal conviction because the trial court had refused to admit testimony by three different persons that a man named McDonald had previously confessed to the murder with which Chambers was charged. In Chambers the hearsay confessions of McDonald were “originally made . under circumstances that provided considerable assurance of their reliability.” 410 U.S. at 300, 93 S.Ct. at 1048. The three different spontaneous oral confessions made by McDonald to close acquaintances, being declarations against penal (although not against pecuniary) interest, would probably have been admissible in some jurisdictions under an exception to the hearsay rule for such declarations, see 410 U.S. at 299 n. 17, 93 S.Ct. 1038. Moreover each of the three confessions was corroborated by other evidence, including a confession in writing signed by McDonald and the testimony of an eyewitness to the killing. Here, in contrast, there was little reason to credit Evans’ prior out-of-court photographic identification of Wilcox, especially since Evans was unable to repeat it at trial and Agent Batt testified on voir dire that Evans was somewhat equivocal in making his identification. The level of certainty-demonstrated by a witness is clearly one factor to consider in assessing the reliability of his confession. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In excluding entirely Agent Batt’s testimony concerning the prior photographic selections made by Evans, Judge Newman conceded that he might have admitted this testimony — at least as to Evans’ failure to select the photograph of Jenkins included in the spread shown to him — in a separate trial of Jenkins. In a separate trial, however, Jenkins would have had no due process right to introduce the testimony of Agent Batt regarding the prior identification by Evans, cf. Chambers v. Mississippi, supra. We cannot say that the mere loss of the possible privilege of presenting normally inadmissible hearsay in a separate trial evidences prejudice of a type mandating severance of a joint trial under Rule 14, F.R.Cr.P. Cf. Byrd v. Wainwright, 428 F.2d 1017, 1022" }, { "docid": "22924007", "title": "", "text": "Buzzy.’ ” Barrett argued at the bench that this testimony was admissible under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Fed.R.Evid. 804(b)(3) as a declaration against self-interest, apparently on the theory that Tilley’s display of inside knowledge of “the people from California” (presumably Bass and his associates), the stamp theft, and the identity of persons “involved”, all tended against Tilley’s penal interest at the time by advertising his likely complicity. The court excluded the proffered testimony as hearsay on the ground that the relevant part, that Buzzy, not Bucky, was involved, was not against Tilley’s interest. The court said, “You are offering it not to prove anything prejudicial to the alleged maker of the statement but to prove that [Buzzy] rather than [Bucky] did it . .” Barrett argues on appeal that the entire statement, including the portion exculpating Barrett, should have been admitted. Rule 804(b)(3) of the new Federal Rules of Evidence provides, with an important qualification, for the admission of a statement by an unavailable declarant that at the time of making tended to subject him to criminal liability. The rule provides in pertinent part, “(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * * * sjs * (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissable [sic] unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Rule 804(b)(3) is a departure from the principle laid down in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), in which the Supreme Court endorsed the exclusion from evidence of a third party’s extra-judicial confession" }, { "docid": "6403747", "title": "", "text": "of Palumbo might be offered as evidence were she brought to trial, insofar as it tends to establish knowing possession on her part and might support a theory of conspiracy to possess or to distribute cocaine. . The Supreme Court held in Chambers that the trial court’s exclusion of the hearsay testimony of three witnesses that another person had confessed to the crime for which Chambers stood trial, coupled with the state court’s refusal to permit Chambers to cross-examine a key witness, “denied [Chambers] a trial in accord with traditional fundamental standards of due process.” 410 U.S. at 302, 93 S.Ct. at 1049. The Court was careful to state, however, that it did not establish, as a matter of constitutional law, that any declaration against interest which tends to exculpate the accused must be admitted in a criminal trial. Id. at 299-300, 93 S.Ct. at 1047-1048. . In determining whether corroborating circumstances clearly indicate the trustworthiness of a third party confession, other federal courts have looked to Chambers v. Mississippi for guidance. See United States v. Oropeza, 564 F.2d 316, 325 (9th Cir.), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1977); United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). But see Comment, supra note 3, at 1206 n.103 (criticizing this approach). . The other considerations that influenced the Supreme Court in Chambers are less germane to the case at hand. The Court noted that each of McDonald’s confessions “was in a very real sense self-incriminatory and unquestionably against interest.” 410 U.S. at 301, 93 S.Ct. at 1048. As discussed above, Pfaff’s statements upon arrest contravened her penal interest, although probably not as directly and unambiguously as McDonald’s confessions that he shot the police officer with whose killing Chambers was charged. The Court in Chambers also observed that McDonald was present in the courtroom during trial, and questions about the truthfulness of his extrajudicial statements could have been resolved by cross-examining him. In the present case, Pfaff was unavailable within the meaning" }, { "docid": "376578", "title": "", "text": "558, 561 (2d Cir.), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987)). It is self-evident that Heidel’s murder rendered him an “unavailable” witness. Essentially, Rule 804(b)(3), the “declaration against penal interest” exception to the hearsay rule, requires that to be admissible, the statement must have been, at the time it was made, “so far contrary to the declarant’s best interests that a reasonable person would not make thé statement unless the declarant believed it to be true.” Bahadar, 954 F.2d at 828. Once that determination is made, the inquiry ends, unless the statement would simultaneously expose the declarant to criminal liability and exculpate the accused. In that case, the last sentence of 804(b)(3) applies, requiring corroborating circumstances to “clearly indicate the trustworthiness of the statement.” The appellants claim that it was error for the District Court to rely entirely on Salvador, 820 F.2d at 561 in excluding the Heidel statement based upon the Fed.R.Evid. 804(b)(3) test for corroboration of trustworthiness. In Salvador, this Court held that it is the defendants’ burden to “justify admission of the exculpatory statement by showing ‘corroborating circumstances’ that indicate ‘the trustworthiness’ of the statement.” Salvador, 820 F.2d at 561. That burden is “ ‘not an insignificant hurdle,’ ” id. quoting United States v. Barrett, 539 F.2d 244, 253 (1st Cir.1976), and the “inference of trustworthiness from the proffered ‘corroborating circumstances' must be strong, not merely allowable.” Salvador, 820 F.2d at 561. Instead, the appellants argue that the District Court should have considered the three-part test for evaluating trustworthiness as set forth in Chambers v. Mississippi, 410 U.S. 284, 300-301, 93 S.Ct. 1038, 1048-49, 35 L.Ed.2d 297 (1973): (1) the statement at issue was made spontaneously to a close acquaintance shortly after the crime was committed; (2) it was corroborated by some other evidence in the case, such as the testimony of an eyewitness; and (3) it was self-incriminating and unquestionably against the declarant's penal interest. Applying the rule in Chambers, we find that the appellants failed to establish these requisite elements of trustworthiness. Heidel’s statement which was part of the September" }, { "docid": "5500327", "title": "", "text": "Murgia v. United States, 285F.2d 14, 17 (9th Cir. 1960); Deck et al. v. United States, 9th Cir., 395 F.2d 89, May 7, 1968. In Bible v. United States, 314 F.2d 106 (9th Cir. 1963), cert, denied, 375 U. S. 862, 84 S.Ct. 131, 11 L.Ed.2d 89, this court held that defendant’s demeanor was sufficient to cause suspicion when the record only showed that “he appeared nervous.” There is nothing in this record to show that the search of appellant was in any way unreasonable, and therefore the subsequent arrest was valid. There was no error in; the introduction of the seized evidence. At the beginning of defendant’s case, his counsel made an offer to prove that Scott made a statement, at the time ap pellant and Scott were arraigned before the United States Commissioner, that the narcotics found on appellant were his and that he had secreted them in appellant’s coat. The record shows that at the trial Scott was available to be called as a witness and was being held in a room next to the courtroom. The government prosecutor stated that he had no objection to Scott being called by appellant as a witness and that appellant’s counsel could talk with Scott in regard to his being called. Under these circumstances the court denied appellant’s motion to call the United States Commissioner as a witness. The record shows no attempt by appellant to call Scott as a witness. The weight of authority is against the admission of hearsay evidence which is against a penal interest. E. g., Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913); Jeffries v. United States, 215 F.2d 225, 15 Alaska 83 (9th Cir. 1954). Many commentators have, however, criticized this rule stating that a statement against penal interests is as inherently reliable as is a statement against pecuniary interests. 5 Wigmore, Evidence (3d Ed.) §§ 1476, 1477; McCormick, Evidence, 549-53; Holmes, J., dissenting in Donnelly v. United States, 228 U.S. 243, 277, 33 S.Ct. 449, 57 L.Ed. 820. The state of California has, by both judicial decision" }, { "docid": "22754461", "title": "", "text": "be admitted against the other unless the confessing defendant takes the stand”); Cruz v. New York, 481 U. S. 186, 189-190, 193 (1987) (same). The second category of statements against penal interest encompasses those offered as exculpatory evidence by a defendant who claims that it was the maker of the statement, rather than he, who committed (or was involved in) the crime in question. In this context, our Court, over the dissent of Justice Holmes, originally followed the 19th-century English rule that categorically refused to recognize any “against penal interest” exception to the hearsay rule, holding instead that under federal law only hearsay statements against pecuniary (and perhaps proprietary) interest were sufficiently reliable to warrant their admission at the trial of someone other than the declarant. See Donnelly v. United States, 228 U. S. 243, 272-277 (1913). Indeed, most States adhered to this approach well into the latter half of the 20th century. See Chambers, 410 U. S., at 299 (collecting citations). As time passed, however, the precise Donnelly rule, which barred the admission of other persons’ confessions that exculpated the accused, became the subject of increasing criticism. Professor Wigmore, for example, remarked years after Donnelly: “The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit.... It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice.” 5 J. Wigmore, Evidence § 1477, pp. 289-290 (3d ed. 1940). See also Scolari v. United States, 406 F. 2d 563, 564 (CA9 1969) (criticizing Donnelly); United States v. Annunziato, 293 F. 2d 373, 378 (CA2 1961) (Friendly, J.) (same); Hines v. Commonwealth, 136" }, { "docid": "12153646", "title": "", "text": "impeachment material was not an abuse of authority, rather it was a carefully measured response to several conflicting considerations in this particular case. See United States v. Stroud, 474 F.2d 737, 739 (9th Cir., 1973). The remainder of Walling’s collateral attack argument is of no merit. He testified that counsel was present at the Virginia proceedings, and his trial counsel below stipulated as to the record of those two convictions, which, on their face, demonstrated to the district court that he had been duly informed of his constitutional rights. There is no error as to the district court’s examination of the two prior Virginia State convictions, and as to its allowance into evidence of those records for impeachment purposes. Finally Walling contends that the district court erred in not allowing into evidence the extrajudicial statements of Smith conveyed to a fellow county inmate, Pat Johnson, to the effect that Walling’s complicity in the crime was far less involved, and that Smith was, in some sense, the primary culprit in the case. See discussion, supra. Thus, the theory under which the hearsay would be admitted would be a declaration against Smith’s penal interest. The current law in this Circuit does not recognize the declaration against penal interest exception to the hearsay rule. Scolari v. United States, 406 F.2d 563 (9th Cir., 1969); cert, denied 395 U.S. 981, 89 S.Ct. 2140, 23 L. Ed.2d 769 (1969) adopted the rule expressed in Donnelly v. United States, 228 U.S. 243, 272-277, 33 S.Ct. 449, 57 L.Ed. 820 (1913) which disallowed that exception, and that posture has been reaffirmed recently in United States v. Lopez-Cruz, 470 F.2d 193 (9th Cir., 1972). The proposed Federal rules of evidence provides for the recognition of this exception, see Rule 804(b)(4), Rules of Evidence for United States Courts and Magistrates, but those rules were not to become effective until July 1, 1973, and recent developments suggest that their entering into force will be delayed even longer. Notwithstanding the position in this Circuit on the penal interest exception, Walling suggests that the recent decision in Chambers v. State of Mississippi," }, { "docid": "22909727", "title": "", "text": "trial testimony on Souca’s alleged confession or at least to admit into evidence the transcript of an earlier in camera exam ination of the informant in which details of the confession were given. The admissibility into evidence of hearsay statements against penal interest is controlled by Federal Rule of Evidence 804(b)(3) which was in effect at the time of trial. Rule 804(b)(3), in providing that “a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement,” significantly departs from a prior rule in the federal system barring the use of such hearsay declarations that had stood since its inception in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). The significant change, of course, is that now declarations against penal interest are deemed an exception to the hearsay rule and subject to admission as such if there is sufficient corroborating evidence to indicate their trustworthiness. The requirement of corroboration was written into the Rule to guard against the inherent danger that third party confessions tending to exculpate a defendant are the result of fabrication. See Advisory Comm. Notes, Fed.R.Evid. 804(b)(3). And the possibility of fabrication, of course, is only enhanced when the hearsay declarant is not available for examination at the trial. The determination whether corroborating circumstances clearly indicate the trustworthiness of a third party confession lies within the sound discretion of the trial court, which is aptly situated to weigh the reliability of the circumstances surrounding the declaration, and this Court will review the exclusion of the Souca confession only for an abuse of discretion. To guide our review we turn to the Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1975), which sets forth four general considerations relevant to an investigation of the trustworthiness of third party confessions. 410 U.S. at 300-01, 93 S.Ct. 1038. (1) the time of the declaration and the party to whom the declaration was made. (2) the existence of corroborating evidence in" }, { "docid": "12037783", "title": "", "text": "reversal and a new trial. Rizzo, who plead guilty, and Walberg were the couple traveling from Italy. It was they who were caught by customs inspectors in February at the'same time that Tony Beltempo and Antonia Ganguzza successfully smuggled the heroin in their suitcases past the customs officers. The statement sought to be introduced was made by Rizzo when he and Walberg appeared before the United States Magistrate for their initial appearance. Rizzo told the Magistrate that Walberg “had nothing to do with [the smuggling conspiracy].” The proceedings were not transcribed and no written offer of proof was made. Rizzo did not appear as a witness at the trial. The statement was offered as a declaration against the penal interest of an unavailable declarant. Fed.R.Evid. 804(b)(3) provides, in pertinent part: “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” In Chambers v. Mississippi, 410 U.S. 284, 300-01, 93 S.Ct. 1038, 1048, 35 L.Ed.2d 297 (1973), the Supreme Court held that to be admissible the hearsay statement must be made by an unavailable declarant, spontaneously and in close temporal proximity to the crime, corroborated by some other evidence in the case, and self-incriminatory against the declarant’s penal interest. This court has also held that Rule 804(b)(3) as well as Chambers require corroborating circumstances that clearly indicate the trustworthiness of the hearsay statement. United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). The district court properly found that declarant Rizzo was unavailable because he asserted his Fifth Amendment right by refusing to testify. United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978). The court also correctly held that the statement made was against his penal interest. It satisfied Chambers in that it could be found to be spontaneous and close in time to the crime. Nevertheless, there was insufficient corroboration in the record to establish the trustworthiness necessary to make Rizzo’s hearsay remark admissible. Culling from" }, { "docid": "320549", "title": "", "text": "the declarant’s pecuniary and penal interests. This offer, upon the objection of the government, was refused by the district court. First of all, it should be noted that the tape recorded statement by Grove was only marginally against his interest. Although the conversation with Murphy and Brandenfels may have set forth Grove’s dealings in some detail, the recorded statement itself only inferentially inculpated Grove by exonerating Brandenfels, Gnapp and others of complicity in any “questionable transactions” at Northwest Guaranty. However, even if we assume that this recording qualifies as a statement against interests, the district court properly excluded it. This Circuit has not recognized the declaration against penal interest exception to the hearsay rule. United States v. Harris, 501 F.2d 1 (9th Cir. 1974); United States v. Walling, 486 F.2d 229 (9th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974); Scolari v. United States, 406 F.2d 563 (9th Cir. 1969). Insofar as the statement may have been against Grove’s pecuniary interest by subjecting him to potential civil liability for funds wrongfully appropriated from Northwest Guaranty, such liability was only a natural accompaniment of any criminal acts involving some form of theft and cannot provide grounds for admission of the statement. See, for example, United States v. Walling, supra, which in essence involved the theft and subsequent destruction of an automobile and in which this court affirmed the exclusion of a hearsay statement in which the declarant accepted prime responsibility for the acts in question. However, appellant’s contention runs deeper. He argues that we should accept the “more enlightened” view of the statements against penal interest exception embodied in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and the newly enacted Federal Rules of Evidence. As to Chambers, this court has previously had occasion to note that the Supreme Court’s ruling that certain hearsay statements should have been admitted was limited to the “facts and circumstances” of that case and further that the Supreme Court “expressly refrained from deciding ‘whether, under other circumstances [the exclusion of some declaration against penal" }, { "docid": "320550", "title": "", "text": "funds wrongfully appropriated from Northwest Guaranty, such liability was only a natural accompaniment of any criminal acts involving some form of theft and cannot provide grounds for admission of the statement. See, for example, United States v. Walling, supra, which in essence involved the theft and subsequent destruction of an automobile and in which this court affirmed the exclusion of a hearsay statement in which the declarant accepted prime responsibility for the acts in question. However, appellant’s contention runs deeper. He argues that we should accept the “more enlightened” view of the statements against penal interest exception embodied in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and the newly enacted Federal Rules of Evidence. As to Chambers, this court has previously had occasion to note that the Supreme Court’s ruling that certain hearsay statements should have been admitted was limited to the “facts and circumstances” of that case and further that the Supreme Court “expressly refrained from deciding ‘whether, under other circumstances [the exclusion of some declaration against penal interest statements] might serve some valid state purpose by excluding untrustworthy testimony.’ ” United States v. Walling, supra, 486 F.2d at 238-39, quoting Chambers v. Mississippi, supra, 410 U.S. at 300, 93 S.Ct. 1038. See also United States v. Harris, supra, 501 F.2d at 7. And as emphasized in both Walling and Harris, the circumstances surrounding the confessions sought to be introduced in Chambers provided considerable assurance of reliability. They had been made spontaneously shortly after the murder in question had occurred; there was other evidence in the trial corroborating the truth of the confessions; each statement was in a very real sense self-incriminatory and unquestionably against interest;’ and if there was any question about the truthfulness of the statements, the declarant was in the courtroom and could have been cross-examined by the government. The circumstances in this case stand in marked contrast. They were not spontaneous but rather made 4-6 weeks after Grove had fled to Brazil and spoken directly to one of the men sought to be exculpated. Grove at that time was" }, { "docid": "12153648", "title": "", "text": "410 U.S. 284, 93 S.Ct. 1038, 35 L. Ed.2d 297 (1973) requires the invocation of this exception in this particular case. However, that case, on matters of law and fact, can be distinguished from the instant case. First, the Supreme Court expressly noted that its holding was to be limited to the “facts and circumstances” of that case, Chambers, supra 410 U.S. at 301, 93 S.Ct. at 1049, and it expressly refrained from deciding “whether, under other circumstances [the exclusion of some declaration against penal interest statements] might serve some valid state purpose by excluding untrustworthy testimony.” Chambers, supra 410 U.S. at 300, 93 S. Ct. at 1048. Second, the facts and circumstances of that case are in substantial variance with those in the instant case. The declarant in Chambers, McDonald, orally admitted, on three separate occasions to different friends shortly after the homicide in question, his direct responsibility for that crime. In contrast, the declarant here, Smith, orally admitted, on only one occasion to a fellow inmate long after the commission of the criminal act and prior to his own sentencing, of certain actions which only served to substantiate his own, already established, culpability, and which only mitigated, in part, the complicity of Walling in the offenses charged. Furthermore, McDonald also made a written confession as to his responsibility, and the Supreme Court was disturbed by the additional factor that Chambers was not allowed to examine McDonald as an adverse witness as to his past actions. These elements are noticeably absent in the instant case. Additionally, the Supreme Court noted that McDonald’s confessions were corroborated by other evidence in the case (including eyewitness accounts as to his complicity in the shooting); that the confessions were, in a very real sense, self-incriminatory, and unquestionably against interest; that the truthfulness of the extrajudicial statements could have been tested by cross-examination of McDonald who was available in the courtroom (comparing the situation in Donnelly, supra); and, finally, that McDonald’s testimony was “critical to Chambers’ defense.” Chambers, supra 410 U.S. at 310, 93 S.Ct. at 1049. Analogous factors of equally compelling weight were" }, { "docid": "6403740", "title": "", "text": "would flow from naming a real participant or no one at all, may be a cover for concealment purposes (another kind of “advantage”), or may represent an effort to gain some kind of personal revenge. Davenport, The Confrontation Clause and the Coconspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378, 1396 (1972). The Advisory Committee that drafted Rule 804(b)(3) also recognized these dangers. Its Note to Rule 804 cautions that “a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities.” In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court identified several circum stances which provide assurance that proffered hearsay testimony is trustworthy. Although the Court in Chambers was presented with a constitutional challenge to the exclusion of evidence rather than a question of admissibility under the Federal rules, the Court’s discussion of reliability, while not binding in the present circumstances, may nonetheless assist in evaluating the trustworthiness of the hearsay evidence at issue here. The evidence excluded by the state courts in Chambers consisted of three confessions made by one McDonald to the crime with which Chambers was charged. In concluding that the context in which these admissions were made offered “considerable assurance” of their reliability, the Court observed that “each of McDonald’s confessions was made spontaneously to a close acquaintance shortly after the murder had occurred.” Id. at 300, 93 S.Ct. at 1048. In contrast, Pfaff’s purported admission took place only after she had been taken into custody, and may have been prompted by a belief that she would thereby gain favorable treatment from the police or prosecutor. Moreover, her comments were not made spontaneously, but were part of a statement elicited by the arresting officers. Cf. United States v. Thomas, 571 F.2d 285, 290 (5th Cir. 1978) (declaration against interest sufficiently corroborated when statement was not elicited by questioning, was facially spontaneous, and was made in the presence of several witnesses). In Chambers, the confessions were corroborated by other evidence in the case;" }, { "docid": "12153647", "title": "", "text": "the theory under which the hearsay would be admitted would be a declaration against Smith’s penal interest. The current law in this Circuit does not recognize the declaration against penal interest exception to the hearsay rule. Scolari v. United States, 406 F.2d 563 (9th Cir., 1969); cert, denied 395 U.S. 981, 89 S.Ct. 2140, 23 L. Ed.2d 769 (1969) adopted the rule expressed in Donnelly v. United States, 228 U.S. 243, 272-277, 33 S.Ct. 449, 57 L.Ed. 820 (1913) which disallowed that exception, and that posture has been reaffirmed recently in United States v. Lopez-Cruz, 470 F.2d 193 (9th Cir., 1972). The proposed Federal rules of evidence provides for the recognition of this exception, see Rule 804(b)(4), Rules of Evidence for United States Courts and Magistrates, but those rules were not to become effective until July 1, 1973, and recent developments suggest that their entering into force will be delayed even longer. Notwithstanding the position in this Circuit on the penal interest exception, Walling suggests that the recent decision in Chambers v. State of Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L. Ed.2d 297 (1973) requires the invocation of this exception in this particular case. However, that case, on matters of law and fact, can be distinguished from the instant case. First, the Supreme Court expressly noted that its holding was to be limited to the “facts and circumstances” of that case, Chambers, supra 410 U.S. at 301, 93 S.Ct. at 1049, and it expressly refrained from deciding “whether, under other circumstances [the exclusion of some declaration against penal interest statements] might serve some valid state purpose by excluding untrustworthy testimony.” Chambers, supra 410 U.S. at 300, 93 S. Ct. at 1048. Second, the facts and circumstances of that case are in substantial variance with those in the instant case. The declarant in Chambers, McDonald, orally admitted, on three separate occasions to different friends shortly after the homicide in question, his direct responsibility for that crime. In contrast, the declarant here, Smith, orally admitted, on only one occasion to a fellow inmate long after the commission of the criminal" }, { "docid": "22754462", "title": "", "text": "other persons’ confessions that exculpated the accused, became the subject of increasing criticism. Professor Wigmore, for example, remarked years after Donnelly: “The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit.... It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice.” 5 J. Wigmore, Evidence § 1477, pp. 289-290 (3d ed. 1940). See also Scolari v. United States, 406 F. 2d 563, 564 (CA9 1969) (criticizing Donnelly); United States v. Annunziato, 293 F. 2d 373, 378 (CA2 1961) (Friendly, J.) (same); Hines v. Commonwealth, 136 Va. 728, 117 S. E. 843 (1923) (criticizing Donnelly and refusing to incorporate it into state law); Wright, Uniform Rules and Hearsay, 26 U. Cin. L. Rev. 575 (1957). Finally, in 1973, this Court endorsed the more enlightened view in Chambers, holding that the Due Process Clause affords criminal defendants the right to introduce into evidence third parties’ declarations against penal interest— their confessions — when the circumstances surrounding the statements “provid[e] considerable assurance of their reliability.” 410 U. S., at 300. Not surprisingly, most States have now amended their hearsay rules to allow the admission of such statements under against-penal-interest exceptions. See 5 J. Wigmore, Evidence § 1476, p. 352, and n. 9 (J. Chadbourn rev. 1974); id., §1477, at 360, and n. 7; J. Wigmore, Evidence §§ 1476 and 1477, pp. 618-626 (A. Best ed. Supp. 1998). But because hearsay statements of this sort are, by definition, offered by the accused, the admission of such statements does not implicate Confrontation Clause concerns. Thus, there is no need to decide whether the reliability of" }, { "docid": "23221546", "title": "", "text": "United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). Appellants, in apparent reliance on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), contend that the exception must be invoked in this case. We disagree. In Chambers, “[t]he hearsay statements involved . were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” 410 U.S. at 300, 93 S.Ct. at 1048. Here, there were not sufficient guarantees of trustworthiness to render the statement admissible. See United States v. Walling, 486 F.2d 229, 238-239 (9th Cir. 1973) ; cf. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Appellants’ forth contention is that the trial court denied them their right effectively to cross-examine the Government informant, Durden. They specifically point to the court’s permitting Durden to refuse to answer questions regarding his resident address. Although Durden disclosed his name, occupation, and business address, the trial court sustained the Government’s objection to a question regarding his residence. The Government, in challenging defense counsel’s question, was silent as to the ground for its objection. Nor did the Government, at any time during trial, indicate that the informer believed he was in danger. Additionally, the trial court sustained objections to defense counsel’s questions which attempted to demonstrate Durden’s bias, prejudice, or motive. The record is barren as to the reason the court deemed these inquiries improper. Manifestly, the right of an accused to cross-examine the witnesses against him is embodied in the confrontation clause of the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Indeed, “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110. In the present case, the cross-examination of the Government informant was of utmost importance since his reliability and credibility may well have determined the guilt or innocence of appellants. Smith" }, { "docid": "5500328", "title": "", "text": "next to the courtroom. The government prosecutor stated that he had no objection to Scott being called by appellant as a witness and that appellant’s counsel could talk with Scott in regard to his being called. Under these circumstances the court denied appellant’s motion to call the United States Commissioner as a witness. The record shows no attempt by appellant to call Scott as a witness. The weight of authority is against the admission of hearsay evidence which is against a penal interest. E. g., Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913); Jeffries v. United States, 215 F.2d 225, 15 Alaska 83 (9th Cir. 1954). Many commentators have, however, criticized this rule stating that a statement against penal interests is as inherently reliable as is a statement against pecuniary interests. 5 Wigmore, Evidence (3d Ed.) §§ 1476, 1477; McCormick, Evidence, 549-53; Holmes, J., dissenting in Donnelly v. United States, 228 U.S. 243, 277, 33 S.Ct. 449, 57 L.Ed. 820. The state of California has, by both judicial decision and legislative enactment, provided that statements against penal interest are valid exceptions to the hearsay rule. People v. Spriggs, 60 Cal.2d 868, 389 P.2d 377, 36 Cal.Rptr. 841 (1964); California Evidence Code, section 1230. Assuming, arguendo, that we were to adopt the California rule of admissibility, the trial judge still did not err by refusing to allow the questioned evidence in the case at bar because it was not shown that the hearsay declarant was unavailable as a witness. While the California Supreme Court held in Spriggs that unavailability was not required for admission of the hearsay evidence, the legislature included this requirement in its codification of the rule of this case. California Evidence Code, section 1230. Likewise, Wigmore has stated that unavailability of the declarant is a requirement for the admission of a hearsay declaration against interest. 5 Wigmore, Evidence (3d Ed.) §§ 1455, 1456. Under the circumstances of this case, we see no error on the part of the district court in refusing to admit the offered evidence. Appellant next contends that the" }, { "docid": "14895771", "title": "", "text": "availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the state. The Court further held that it was additional fundamental error for the trial court to have excluded the testimony of the three witnesses to whom McDonald had admitted the shooting. The Court held that the hearsay exception which permitted declarations against interest should have included declarations against penal, as well as pecuniary, interest. The circumstances of the case provided considerable assurances of the reliability of the confessions made by McDonald to the witnesses, who were close friends of McDonald’s. (The spontaneous confessions were made to close friends shortly after the murder, each confession was corroborated by other evidence in the case, all of the confessions were unquestionably admissions against interest, and McDonald himself was present in the courtroom and available for cross-examination if there had been any question about the truthfulness of the extrajudicial statements.) In Green v. Georgia, 442 U.S. 95, 60 L.Ed.2d 738, 99 S.Ct. 2150 (1979), the Supreme Court vacated petitioner Green’s death sentence where the trial court excluded as inadmissible hearsay a statement made by co-indictee Moore exculpating Green. The trial court refused to allow one Pasby, a confidant of Moore to whom an admission was made by Moore, to testify on behalf of the co-perpetrator Green. The Supreme Court held that in this case the supporting evidence corroborating the admission was ample since the State used it to convict Moore. The statement was certainly against interest. In these circumstances, the Court held, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. (citing Chambers v. Mississippi, 410 U.S. 284, 302, 35 L.Ed.2d 297, 93 S.Ct. 1038 [1049] (1973)). In Boykins v. Wainwright, 737 F.2d 1539 (11th Cir.1984), Petitioner Boykins successfully challenged his robbery conviction on habeas. Boykins’s only defense at trial was insanity and he sought to introduce expert testimony of one Dr. Jesus Rodriguez, who had treated petitioner for" } ]

[ { "docid": "12223397", "title": "", "text": "twelve years and had declared another property as his homestead. The Court is persuaded that the fact that the Debtor in the Boyette case “declared homestead on property elsewhere” was more of a factor in establishing the abandonment than the passage of twelve years. People do go away for more than twelve years from established homesteads and that amount of absence alone does not constitute an abandonment. Under Florida law, abandonment of a homestead may only be proved by a strong showing of a debtor’s intent not to return to his residence. Mere absence due to health, financial, or family reasons generally does not constitute an abandonment. Monson v. First National Bank of Bradenton, 497 F.2d 135 (5th Cir.1974). What proof supports Creditor’s claim of abandonment? Absence for one or three years alone is not sufficient. Weeds on the property are immaterial. Posting a “For Sale” sign or offering the property for sale is not abandonment. Thousands of “For Sale” signs are posted on homesteads throughout Dade County this very minute and those homesteads are not thereby abandoned. This Court agrees with the rationale of Judge Conrad in the Vermont case of In re Bernstein, 62 B.R. 545 (Bankr.D.Vt.1986). In that case, Judge Conrad held that a debt- or’s intent to sell, in the future, without more, did not establish present abandonment of homestead so as to defeat the homestead exemption. If a debtor pronounces his intent to abandon his homestead and moves away intending never to return, that would do it. If a debtor declares other property as homestead, that creates an estoppel against the debtor. When a credible debtor testifies under oath that his intent is to retain his homestead, sell it, and then buy another with the proceeds, that is sufficient to prove his intent to maintain his homestead. In Bernstein, the court stated: If we were to accept ... [the] argument that intent to sell a homestead is the abandonment of it, then every citizen ... would place their homestead exemptions in the coffers of attaching creditors by the mere execution of a listing agreement with" } ]

[ { "docid": "11994331", "title": "", "text": "Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943); see also Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla.1962) (holding that “intent alone is not a sufficient basis for the establishment of a homestead” (emphasis in original)). Although a homestead may be alienated, abandoned, sold, or mortgaged like any other property, a homeowner cannot “waive” the constitutional Homestead Exemption in any agreement except through a properly executed mortgage. Chames v. DeMayo, 972 So.2d 850, 854 (Fla.2007) (holding that the waiver of the Homestead Exemption in an unsecured retainer agreement was unenforceable). It is well established that “where a homestead has been acquired it can be waived only by abandonment or by alienation in the manner provided by law.” Olesky v. Nicholas, 82 So.2d 510, 512 (Fla.1955). Abandonment of a homestead occurs when “the owner removes from the home with no intention of returning, takes up [ ] permanent abode at another place and pursues [a] livelihood there.” Barlow v. Barlow, 156 Fla. 458, 23 So.2d 723, 724 (1945). While homestead status may be lost through alienation or sale of the homestead property, the Florida Supreme Court has held that even the proceeds from the sale of a homestead are protected from the claims of creditors if the owner intends to reinvest the proceeds in another homestead within a reasonable time. Orange Brevard, 137 So.2d at 206. Thus, under Florida law, the Homestead Exemption found in Article X of the Florida Constitution protects the homestead from forced sale in almost all circumstances. Until the homestead status is lost through sale of the property or abandonment through change in residence, the homestead can only be sold to pay three narrow categories of debts: taxes and assessments, mortgages or loans for improvements, and laborer’s liens for improvements on the property. 2. Receiving the Benefits As some courts have noted, it is not possible under Florida law to stop receiving the benefits of the Homestead Exemption without abandonment or alienation. See In re Magelitz, 386 B.R. at 883; In re Franzese, 383 B.R. at 203. If all who could" }, { "docid": "1165988", "title": "", "text": "were not going to buy another home in Florida but intended to divide the net proceeds of the sale. The reason they sold the house was that they could not make the monthly payments and could rent an apartment for less money. At the time of the meeting of creditors they were living apart and not financially supporting each other, but at the hearing on exemptions were again living together. There are no children by the marriage. It is well settled under Florida law that the homestead status of property is not perpetual and may be deemed abandoned by the debtor’s conduct. Property will lose its homestead status upon permanent abandonment as a bona fide home and place of permanent abode. Murphy v. Farquhar, 39 Fla. 350, 22 So. 681 (1897). The homestead must be the place of actual residence of the family. Matthews v. Jeacle, 61 Fla. 686, 55 So. 865 (1911). The character of property as homestead depends upon an actual intention to reside thereon as a permanent place of residence, coupled with the fact of residence. Lanier v. Lanier, 95 Fla. 522, 116 So. 867 (1928). Of course, what constitutes an abandonment or relinquishment of the homestead must be determined from the pertinent facts and circumstances of each case as it arises. Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521 (Fla. 1931). The debtors rely on In re Crump, 2 B.R. 222 (Bkrtcy.S.D.Fla.1980). There, the debtors contracted prior to the petition to sell their home and consummated the transaction one day after filing. In overruling the trustee’s objection to the debtors’ claim of homestead exemption, the court held that the trustee’s rights fix on the day the petition is filed and on that day the debtors occupied the house as homestead. The Crump case is distinguishable on its facts. There, the debtors moved into leased premises on which they had an option to purchase. Although they had no present ability to make the purchase, they manifested a desire to purchase another home. Here, debtors have testified that they do not intend to buy another" }, { "docid": "10271799", "title": "", "text": "and by preserving a home where a family may be sheltered and live beyond the reach of economic misfortune. Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328, reh. den., 144 Fla. 330, 198 So. 13; Collins v. Collins, 150 Fla. 374, 7 So.2d 443. From this it follows that all exceptions to the exemptions should be strictly construed in favor of the claim and against the challenger of the claim of exemptions. Graham v. Azar, 204 So.2d 193 (Fla.1967). However, it is equally true that the law should not be applied as to make it an instrument of fraud. Hillsborough Invest. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448 (1943). The claim of exemptions carries initially some presumptive validity and it is clear that the burden is on the objecting party to establish with preponderance of the evidence that the Debtor in fact is not entitled to the exemptions claimed. In this particular instance the objecting creditors rely solely on the fact that the Debtor stated twice under penalty of perjury that on the date of the commencement of the case she resided at 711 Oak Park Place, Brandon, Florida and not at 1311 Sunfish Drive, Brandon, Florida— property which she claims to be her homestead. It has been uniformly recognized that while the Constitution does not expressly require the owner to occupy the place claimed as homestead, there is hardly any question that the premises must be occupied as homestead by the claimant as the actual residence before the claim of an exemption can be recognized. Hillsborough Invest. Co. v. Wilcox, supra. Once the property acquires a status of homestead, that characteristic continues to attach to it unless the homestead has been abandoned. Marsh v. Hartley, 109 So.2d 34 (Fla.App.1959). From this it follows that a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character. Hillsborough Invest. Co. v. Wilcox, supra. The intention of the claimant is a crucial factor. Thus, when the claimant of homestead moves out of the property with the intention never" }, { "docid": "3878243", "title": "", "text": "a debtor may exempt up to $4,000 in personal property “if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution.” Since the Debtor in this case has not claimed the homestead as exempt, the question is whether he receives the benefits of the constitutional homestead exemption. The cases that have construed Fla. Stat. § 222.25(4) have provided cogent analyses of the language of the statute which need not be repeated here. In In re Gatto, 380 B.R. 88 (Bankr.M.D.Fla.2007), the court held that the fact the debtors did not claim their homes as exempt combined with the surrender of their homes meant that they did not receive the benéfits of the constitutional homestead exemption, and therefore the debtors were entitled to claim the $4,000 wildcard personal property exemption under Fla. Stat. § 222.25(4). Gatto, 380 B.R. at 90-91. The Gatto court explained that, in order to be excluded from the enhanced personal property exemption, the language of the statute requires that the debtor presently receive benefits that derive from the constitutional exemption of the home from the reach of creditors. Id. at 91-93 The drafters of the statute intended to prevent debtors who do not affirmatively claim the constitutional homestead exemption from indirectly receiving its benefit while also receiving the additional $4,000 exemption in personal property. Id. In In re Morales, 381 B.R. 917 (Bankr.S.D.Fla.2008), the debtor was ambiguous about his intention with respect to his home; while he indicated that he would surrender the property to one mortgage holder, he also indicated that he intended to reaffirm the debt owed to the other. Morales, 381 B.R. at 920. These incompatible selections by the debtor prevented the Morales court from being able to find a clear and unambiguous intent to abandon the home. Because under “longstanding” Florida law property loses homestead status when it is abandoned, see id. at 920-21 (citing In re Beebe, 224 B.R. 817, 820 (Bankr.N.D.Fla.1998)); Olesky v. Nicholas, 82 So.2d 510, 512 (Fla. 1955), the lack of a clear intent to abandon meant" }, { "docid": "21442255", "title": "", "text": "or not. Florida state courts consistently have held that the homestead exemption should be liberally construed in the interest of protecting the family home. Quigley v. Kennedy & Ely, Ins. Inc., 207 So.2d 431, 432 (Fla.1968); Graham v. Azar, 204 So.2d 193, 195 (Fla.1967). The homestead exemption is designed to provide solidity and preservation of the home. In re Harrison, 236 B.R. 788, 789-90 (Bankr.M.D.Fla.1999). “Any challenge to the homestead exemption claim places a bur den on the objecting party to make a strong showing that the Debtor is not entitled to the claimed exemption.” In re Laing, 329 B.R. 761, 770 (Bankr.M.D.Fla.2005); In re Harrison, 236 B.R. 788, 790 (Bankr.M.D.Fla.1999). Homeowners seeking to qualify for the homestead exemption must meet both an objective and subjective test. First, the owner must actually use and occupy the home. Second, he or she must express an actual intent to live permanently in the home. In re Brown, 165 B.R. 512, 514 (Bankr.M.D.Fla.1994) (holding homestead established by actual use and occupancy coupled with an actual intent to live permanently in a house); Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943) (noting it is well-settled that homestead status is established by the actual intention to live permanently in a residence, actual use and occupancy). A homeowner, however, can forfeit the right to claim a home exempt. Any action taken by the homeowner that is incompatible with an intention to permanently reside in a residence may cause the homeowner to lose the benefits of Article X, Section 4, of the Florida Constitution. Semple v. Semple, 82 Fla. 138, 89 So. 638, 640 (1921) (holding owner did not have the intention needed to establish a homestead where he executed a deed of conveyance of the property to his wife). Finally, a homeowner can waive the right to claim homestead protection by abandonment or alienation in any manner provided by law. Barlow v. Barlow, 156 Fla. 458, 23 So.2d 723, 724 (1945). As such, not every natural person “receive[s] the benefits of a homestead exemption under Section 4, Article X, of the" }, { "docid": "1165989", "title": "", "text": "the fact of residence. Lanier v. Lanier, 95 Fla. 522, 116 So. 867 (1928). Of course, what constitutes an abandonment or relinquishment of the homestead must be determined from the pertinent facts and circumstances of each case as it arises. Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521 (Fla. 1931). The debtors rely on In re Crump, 2 B.R. 222 (Bkrtcy.S.D.Fla.1980). There, the debtors contracted prior to the petition to sell their home and consummated the transaction one day after filing. In overruling the trustee’s objection to the debtors’ claim of homestead exemption, the court held that the trustee’s rights fix on the day the petition is filed and on that day the debtors occupied the house as homestead. The Crump case is distinguishable on its facts. There, the debtors moved into leased premises on which they had an option to purchase. Although they had no present ability to make the purchase, they manifested a desire to purchase another home. Here, debtors have testified that they do not intend to buy another house. The Court also questions the legal conclusion in the Crump case that the property remained homestead so long as the debtors held title. By ordinary common law principles, the doctrine of equitable conversion becomes operative upon an agreement to convey realty. The vendee immediately becomes the beneficial owner, and the vendor retains only a naked legal title as security for payment of the purchase price. Hull v. Maryland Casualty Co., 79 So.2d 517 (Fla.1954). Once the contract for sale has been entered, the vendee’s interest becomes personalty. Tingle v. Hornsby, 111 So.2d 274 (Fla. 1st D.C.A. 1959). Further, although the date of the petition is absolute in fixing certain rights of the Trustee, the Court cannot blind itself to subsequent events, particularly when trying to determine a matter as ephemeral as intent. The homestead exemption protects the roof over the debtor’s head, not personal property or assets which may have once been connected to a homestead. The exemption is for the benefit of the family as a place of actual residence not as a" }, { "docid": "5482577", "title": "", "text": "actual use and occupancy.” In re Brown, 165 B.R. 512, 514 (Bankr.M.D.Fla.1994). The Supreme Court of Florida has held that intent to establish a homestead is evidenced by a debtor’s specific acts toward creating a permanent abode which are not contradicted by subsequent behavior of the debtor. Semple v. Semple, 82 Fla. 138, 89 So. 638 (Fla.1921). In determining what constitutes actual use and occupancy of property for homestead purposes, this Court recognizes that “[preparation of the property for immediate occupancy may be sufficient.” In re Brown, 165 B.R. 512, 514 (Bankr.M.D.Fla.1994) citing Semple v. Semple, 82 Fla. 138, 89 So. 638 (Fla.1921). In this case, defendant purchased property and prepared it for immediate occupancy by his son and a friend. Although defendant did not physically occupy the property on a continued basis, he financed the property, took responsibility for the tax obligations relating to the property, and paid for the general maintenance of the property. Defendant was frequently absent from the property due to work-related travel. However, defendant did “reside” at the property when in Florida. Combined, defendant’s acts manifest an intent to establish a homestead which was actually used and occupied by defendant, his son, and a friend. The Court finds that defendant established the Daytona Beach property as a homestead. B. ABANDONMENT OF A HOMESTEAD Ordinarily, property established as a homestead is exempt from creditor’s claims against the bankruptcy estate. In this case, however, plaintiff alleges that defendant abandoned the homestead and forfeited the protection of the exemption. This Court has held that “[o]nce property is imbued with homestead status, it remains homestead until it is abandoned.” In re Mackey, 158 B.R. 509, 513 (Bankr.M.D.Fla.1993). If, however, a family home is abandoned, “it loses its exempt status.” In re Brink, 162 B.R. 355, 358 (Bankr.M.D.Fla.1993). A homestead has been abandoned when it is no longer a “bona fide home and place of permanent abode.” In re McCarthy, 13 B.R. 389, 390 (Bankr.M.D.Fla.1981). This Court agrees with others which have held that leasing homestead property constitutes abandonment of that property. In re Shillinglaw, 81 B.R. 138 (Bankr.S.D.Fla.1987). In" }, { "docid": "3689805", "title": "", "text": "carry the hallmarks of abandonment in that the Debtor moved out of the home, did not re-establish residence, and did not reside at the former marital home on the date she filed her Petition. However, there are two critical differences. First, the Debtor remains the co-owner of the property; second, the Debtor’s former husband and minor son still reside in the home. A similar fact pattern was presented in Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981). In Nationwide, after separating, the husband moved out while the wife and the couple’s three children remained in the marital home, of which she was joint owner. Nationwide obtained a judgment against the husband and attempted to levy on the husband’s one-half interest in the home. The husband claimed his one-half interest as exempt under the homestead exemption provided for by Fla. Const. art X, § 4. The court rejected Nationwide’s contention that the property was abandoned, relying on Vandiver v. Vincent, 139 So.2d 704 (Fla. 2d DCA 1962), where the court found that the Constitution does not require the owner claiming a homestead exemption to reside on the property; it will suffice that the owner’s family resides thereon. Furthermore, in order to support the claim of abandonment, it must be shown that both the owner as well as the owner’s family abandoned the property. In In re Estate of Melisi, 440 So.2d 584, 585 (Fla. 4th DCA 1983), the court noted that although a homeowner may, in the case of divorce, be precluded from residing on the homestead with the family of which the owner may be the head, the homestead character of the property is not thereby abandoned. A case markedly similar to the one before this Court is In re Luttge, 204 B.R. 259 (Bankr.S.D.Fla.1997). In Luttge, the debtor vacated the former marital property pursuant to a court order granting his former spouse the exclusive right to occupy the property until it could be sold. Id. at 260. When the debtor filed his voluntary petition for relief claiming the property as exempt homestead, the" }, { "docid": "3689803", "title": "", "text": "in the former marital home with their eldest son. The Debtor contends that she was forced to find another residence because the eldest son’s drug-related activities created a harmful environment for herself and the younger child. ' The Trustee asserts that although the property on Marco Island was the Debt- or’s homestead during the marriage, she effectively abandoned her homestead when she moved out. The Trustee further asserts that since the Debtor did not reside in the former marital home on the date she filed her Petition, the Debtor cannot claim the homestead exemption and the property is subject to administration by the Trustee to the extent of the Debtor’s interest in it. In opposition, the Debtor contends that she is entitled to claim the homestead exemption as a matter of law because her minor son still resides on the property with her former spouse. The homestead exemption established by Fla. Const., art. X, § 4, was designed to protect and preserve the fami ly home. See Quigley v. Kennedy & Ely Insurance, Inc., 207 So.2d 431, 432 (Fla.1968), cert. denied, 210 So.2d 869 (Fla1968); Matter of Hersch, 23 B.R. 42, 45 (Bankr.M.D.Fla.1982); In re McCarthy, 13 B.R. 389, 390 (Bankr.M.D.Fla.1981). Consistent with the foregoing, any challenge to the homestead exemption claim places a burden on the objecting party to make a strong showing that the Debtor is not entitled to the claimed exemption. See In re Imprasert, 86 B.R. 721, 722 (Bankr.M.D.Fla.1988); see also Hersch, 23 B.R. at 45. It is equally clear, however, that the property may lose its homestead character if the claimant effectively abandons the property as her homestead. See In re Frederick, 183 B.R. 968, 970-971 (Bankr.M.D.Fla.1995); In re Goode, 146 B.R. 860, 861-862 (Bankr.M.D.Fla.1992); McCarthy, 13 B.R. at 390. Abandonment, however, may only be proven by a strong showing that the Debtor never intended to return to the residence, and mere absence due to health, financial, or family reasons, does not constitute abandonment. See Monson v. First Nat., Bank of Bradenton, 497 F.2d 135, 138 (5th Cir.1974). The facts of the instant case facially" }, { "docid": "11994330", "title": "", "text": "the purchase, improvement or repair thereon; or (3) obligations contracted for house, field or other labor performed on the realty.” Havoco v. Hill, 790 So.2d 1018, 1022 (Fla.2001). The Homestead Exemption is to be liberally construed. Tramel v. Stewart, 697 So.2d 821, 824 (Fla. 1997). The Florida Supreme Court has held that a homestead is protected from forced sale even if the homestead was purchased with and improved by funds gained through illegal activity, Tramel, 697 So.2d at 824 passim, or if the homestead was purchased with the clear and specific intent to shield assets and hinder, delay, and defraud legitimate creditors, Havoco, 790 So.2d 1018 passim. As several courts have pointed out, there is little that a homeowner can do under Florida law to lose the protection of homestead. See In re Magelitz, 386 B.R. at 883; In re Franzese, 383 B.R. at 203. The homestead character of a property “depends upon an actual intention to reside thereon as a permanent place of residence, coupled with the fact of residence.” Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943); see also Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla.1962) (holding that “intent alone is not a sufficient basis for the establishment of a homestead” (emphasis in original)). Although a homestead may be alienated, abandoned, sold, or mortgaged like any other property, a homeowner cannot “waive” the constitutional Homestead Exemption in any agreement except through a properly executed mortgage. Chames v. DeMayo, 972 So.2d 850, 854 (Fla.2007) (holding that the waiver of the Homestead Exemption in an unsecured retainer agreement was unenforceable). It is well established that “where a homestead has been acquired it can be waived only by abandonment or by alienation in the manner provided by law.” Olesky v. Nicholas, 82 So.2d 510, 512 (Fla.1955). Abandonment of a homestead occurs when “the owner removes from the home with no intention of returning, takes up [ ] permanent abode at another place and pursues [a] livelihood there.” Barlow v. Barlow, 156 Fla. 458, 23 So.2d 723, 724 (1945). While homestead" }, { "docid": "589396", "title": "", "text": "The Debtor contends that the settlement proceeds are analogous to the proceeds of a fire insurance contract, which qualify for exempt status under Florida law, provided that the insured property itself initially qualified for the exemption. The Debtor cites Kohn v. Coats, 103 Fla. 264, 138 So. 760 (1931), and In re Sanders, 72 B.R. 124 (Bankr.M.D.Fla.1987) for this proposition. The Debtor also cites a series of cases which primarily hold that Florida’s homestead exemption extends to any proceeds of a voluntary sale of homestead real property, if the proceeds are segregated and the debtor intends to reinvest the proceeds in a new homestead within a reasonable time. In re Englander, 95 F.3d 1028 (11th Cir.1996); Orange Brevard Plumbing & Heating Company v. La Croix, 137 So.2d 201 (Fla.1962); Sun First National Bank of Orlando v. Gieger, 402 So.2d 428 (Fla.5th DCA 1981). The Trustee contends that the proceeds are subject to the limitations established by the Constitution of the State of Florida for personal property. Article X, Section 4 of the Florida Constitution provides that “personal property to the value of one thousand dollars” shall be exempt from forced sale. The Trustee asserts in his Objection that the personal property claimed as exempt by the Debtor is “claimable but the value of the property exceeds the limits set forth” by the Constitution and by statute. Implicit in the Trustee’s objection is the view that the cash proceeds did not assume or retain the homestead character of the Debtor’s real property, and may not be claimed as exempt under . the constitutional provision for homestead real property. The issue in this case, therefore, is whether a debtor may properly claim as exempt, pursuant to Florida’s homestead exemption law, the cash proceeds of a cause of action based on damage to the debtor’s homestead real property, when the proceeds are segregated, and when the Debtor intends to reinvest the proceeds into the homestead real property to rehabilitate the property. It is well-established, of course, that Florida’s homestead exemption should be liberally construed in favor of the exemption. The purpose of the" }, { "docid": "589399", "title": "", "text": "judgment recovered therefor, partake of the nature of the homestead property and are also exempt. ... [W]here injury has been sustained because of an unlawful seizure and sale of exempt property, the amount recovered as compensation for such injury within the constitutional limit would likewise be held exempt.... The homestead right is not limited to a mere holding of the legal title to the exempt property ‘from forced sale’; it contemplates and includes the beneficial, peaceful, and uninterrupted use and enjoyment of such property. Such right is superior to the claims of creditors. The policy of the law conferring it is to preserve the home for the family even at the sacrifice of just demands and to protect the family from destitution and want. Hill v. First National Bank of Marianna et al., 79 Fla. 391, 397-8, 84 So. 190, 192 (Fla.1920)(Emphasis added). The Florida Supreme Court has also concluded that insurance proceeds payable because of damage to the homestead are exempt. In Kohn et al. v. Coats, 103 Fla. 264, 138 So. 760 (Fla.1931), the Florida Supreme Court held: “[I]n view of the purpose for which the homestead is provided, the exemption from execution or forced sale of designated property for that purpose extends to the proceeds of a fire insurance policy due or to be paid for its destruction.” Kohn et al. v. Coats, 138 So. at 761. Considering the reason for its holding, the Florida Supreme Court stated: “... to hold that creditors could seize the proceeds of the insurance policy would ... deprive the insured of the means provided to take the place of and restore his homestead.” Id. at 761. The Florida Supreme Court has also considered whether the proceeds of the voluntary sale of homestead real property are exempt. See Orange Brevard Plumbing & Heating Company v. La Croix, 137 So.2d 201 (Fla.1962). Under the circumstances described in that case, the proceeds of the voluntary disposition of homestead property may continue to receive the protection of the exemption if the proceeds are segregated and if the debtor intends to reinvest the proceeds in a" }, { "docid": "10271800", "title": "", "text": "the date of the commencement of the case she resided at 711 Oak Park Place, Brandon, Florida and not at 1311 Sunfish Drive, Brandon, Florida— property which she claims to be her homestead. It has been uniformly recognized that while the Constitution does not expressly require the owner to occupy the place claimed as homestead, there is hardly any question that the premises must be occupied as homestead by the claimant as the actual residence before the claim of an exemption can be recognized. Hillsborough Invest. Co. v. Wilcox, supra. Once the property acquires a status of homestead, that characteristic continues to attach to it unless the homestead has been abandoned. Marsh v. Hartley, 109 So.2d 34 (Fla.App.1959). From this it follows that a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character. Hillsborough Invest. Co. v. Wilcox, supra. The intention of the claimant is a crucial factor. Thus, when the claimant of homestead moves out of the property with the intention never to return, that certainly would operate as abandonment as a matter of law, which in turn would strip the property of its homestead character. When the intention to abandon the property as homestead is not established, the mere fact that there has been a temporary absence from the premises does not necessarily compel the conclusion that the claimant did, in fact, abandon the homestead formerly occupied by the claimant. Marsh v. Hartley, supra. As noted in the 5th Circuit Court of Appeals in Monson v. First National Bank of Bradenton, 497 F.2d 135 (5th Cir.1974), so long as there is no evidence of an intent to permanently abandon the previously occupied premises, even though the husband and wife were away from the homestead property for a fairly extended period, this did not operate as abandonment of the homestead. In the present instance, this Court is satisfied that the Debtor and her spouse did, in fact, move out of the property which they are now claiming to be their homestead and were physically absent and did" }, { "docid": "3689806", "title": "", "text": "found that the Constitution does not require the owner claiming a homestead exemption to reside on the property; it will suffice that the owner’s family resides thereon. Furthermore, in order to support the claim of abandonment, it must be shown that both the owner as well as the owner’s family abandoned the property. In In re Estate of Melisi, 440 So.2d 584, 585 (Fla. 4th DCA 1983), the court noted that although a homeowner may, in the case of divorce, be precluded from residing on the homestead with the family of which the owner may be the head, the homestead character of the property is not thereby abandoned. A case markedly similar to the one before this Court is In re Luttge, 204 B.R. 259 (Bankr.S.D.Fla.1997). In Luttge, the debtor vacated the former marital property pursuant to a court order granting his former spouse the exclusive right to occupy the property until it could be sold. Id. at 260. When the debtor filed his voluntary petition for relief claiming the property as exempt homestead, the trustee objected and contended that the debtor had abandoned the property. Id. The Luttge court overruled this objection and noted that the debtor would have violated a court order had he remained on the property. The Luttge court found that the debtor’s absence from the property did not constitute abandonment. Id. See also Cain v. Cain, 549 So.2d 1161 (Fla. 4th DCA 1989) (to show abandonment of the homestead, both the owners and the owners’ family must have abandoned the property). In the present case, it is without dispute that the Debtor is still the co-owner of the Marco Island property and that she resided in that home after the divorce. It is also undisputed that the Debtor’s reason for leaving the property was her eldest son’s drug-related activities and the dangerous environment created thereby. The Debtor’s minor son continues to reside in the home. The speculative nature of the evidence regarding the Debtor’s intent to sell the property in question and then use the proceeds to purchase a homestead in Florida does not validate" }, { "docid": "602606", "title": "", "text": "attached to single-family residence did not defeat claim for homestead status for the entire property); and In re Makarewicz, 130 B.R. 620 (Bankr.S.D.Fla.1991) (same). 3. Abandonment of Homestead Exemption Finally, Mitrano asserts that the pre-petition Divorce Decree directive that the Property be sold constituted, as a matter of law, Ballato’s abandonment of the homestead exemption. Abandonment of the homestead right under Florida law cannot be found unless the claimant (i) relinquished possession of the property and (ii) formed the intention to discontinue using the property as a homestead. See Brown v. Lewis, 520 F.Supp. 1114 (M.D.Fla.1981); In re Beebe, 224 B.R. 817 (Bankr.N.D.Fla.1998). In the instant case, it is clear that neither of those circumstances are present. Additionally, to conclude that the homestead exemption has been abandoned, the court must find that the abandonment was voluntary. Absence from the homestead that is involuntary or compulsory, or which arises out of health, financial, or family reasons, does not constitute a relinquishment of the homestead rights. See Barnett Bank, of Cocoa, N.A. v. Osborne, 349 So.2d 223 (Fla. 4th DCA 1977)(the court held that the marital residence was subject to the homestead exemption of the former husband, notwithstanding the former husband and wife having been divorced and the former wife having been awarded exclusive possession of the property.); In re Buick, 237 B.R. 607 (Bankr.W.D.Pa.1999); In re Beebe, 224 B.R. 817 (Bankr.N.D.Fla.1998); In re Estate of Pendrys, 443 So .2d 402 (Fla. 4th DCA 1984); In re Herr, 197 B.R. 939 (Bankr.S.D.Fla.1996). Even if Ballato were absent from the Property as of the Petition Date, the record before this Court establishes, without dispute, that such absence would have been entirely involuntary. Therefore, Mi-trano’s assertion that the homestead exemption was abandoned must be rejected. In re Luttge, 204 B.R. 259, 260-61 (Bankr.M.D.Fla.1997)(court held that chapter 7 debtor did not voluntarily abandon his homestead when he vacated his former residence upon his ex-wife’s commencement of divorce proceedings and despite a state court order granting his ex-spouse exclusive use and possession of the residence until the homestead was sold and the sales proceeds divided between" }, { "docid": "10166581", "title": "", "text": "occupancy of property as a homestead will not deprive the enjoined owner of a homestead exemption. Sakowitz v. McCord, 162 S.W.2d 437 (Tex.Ct.App.1942). Despite a Decree and Restraining Order, the excluded party continues to enjoy homestead rights until he expresses an intention not to return and occupy the home. In re Gullickson, 39 B.R. 922 (Bkrtcy.W.D.Wis.1984); In re Cycyk, 29 B.R. 722 (Bkrtcy.N.D.Ohio 1983); Sykes v. Speer, 112 S.W. 422 (Tex.Ct.App.1908). Delivering possession of the house in response to a Decree will not operate as a waiver of the homestead right. Kuttner v. Haines, 135 Ill. 382, 25 N.E. 752 (1890). Nor may a debtor lose homestead rights by being driven from the property by a Court Order in a contested divorce proceeding if she intended to. retain the homestead lights notwithstanding her absence. Novotny v. Horecka, 200 Iowa 1217, 206 N.W. 110, 42 A.L.R. 1158 (1925). Homestead rights are not abandoned by the conduct of a wife in leaving her husband because of his cruelty even if there is no divorce or separation agreement. O’Neal v. Miller, 143 Fla. 171, 196 So. 478, 129 A.L.R. 295 (1940). See also In re Smith, 57 B.R. 81 (Bkrtcy.W.D.N.Y.1985) (absence from the marital abode pending resolution of property rights does not constitute abandonment of homestead under New York Civil Practice Law and Rules dealing with the homestead exemption). Consequently, because a homestead can only be relinquished voluntarily, we hold that a debtor prevented by a Court’s Order from returning to the homestead has not abandoned the homestead by virtue of such enforced absence. We have found that, except for the prohibition against returning he mistakenly read into the State Court’s order to sell the property, the debtor intended to return to the homestead. In its effect on the debt- or’s intention, however, a perceived prohibition is indistinguishable from an actual prohibition. If an Order forbidding the debtor from returning to the homestead represents compulsion of a kind that cannot defeat homestead rights in the face of an abiding intention to return, then a sincerely held belief in the existence of such an" }, { "docid": "10233054", "title": "", "text": "no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family: (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family There is no question that the Florida homestead is liberally construed in favor of the party claiming the exemption and that the exemption’s purpose is to protect and foster the family home. See In the Matter of Hersch, 23 B.R. 42 (BKR M.D.Fla.1982); Hospital Affiliates of Florida, Inc. v. McElroy, 393 So.2d 25 (1981). Thus, the burden is on the objecting party to make a strong showing that the claimant is not entitled to the claimed exemption. In the Matter of Hersch, supra. It is also clear that in the event the family home is abandoned, it loses its exempt status. In re McCarthy, 13 B.R. 389 (BKR M.D.Fla.1981); M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71 (1982). Abandonment, however, may only be proved by a strong showing of the Debtor’s intent not to return to the residence, and mere absence due to health, financial, or family reasons generally does not constitute an abandonment. Monson v. First National Bank of Bradenton, 497 F.2d 135 (5th Cir.1974). In the instant case, this Court is satisfied that the Debtors left their Sarasota home for financial reasons only and possessed an actual intent to return to the Sarasota residence and live there as their permanent place of residence once the litigation in Tampa concluded. The Debtors’ retention of ownership of the Sarasota property further evidences this intent. Therefore, it appears" }, { "docid": "3689804", "title": "", "text": "So.2d 431, 432 (Fla.1968), cert. denied, 210 So.2d 869 (Fla1968); Matter of Hersch, 23 B.R. 42, 45 (Bankr.M.D.Fla.1982); In re McCarthy, 13 B.R. 389, 390 (Bankr.M.D.Fla.1981). Consistent with the foregoing, any challenge to the homestead exemption claim places a burden on the objecting party to make a strong showing that the Debtor is not entitled to the claimed exemption. See In re Imprasert, 86 B.R. 721, 722 (Bankr.M.D.Fla.1988); see also Hersch, 23 B.R. at 45. It is equally clear, however, that the property may lose its homestead character if the claimant effectively abandons the property as her homestead. See In re Frederick, 183 B.R. 968, 970-971 (Bankr.M.D.Fla.1995); In re Goode, 146 B.R. 860, 861-862 (Bankr.M.D.Fla.1992); McCarthy, 13 B.R. at 390. Abandonment, however, may only be proven by a strong showing that the Debtor never intended to return to the residence, and mere absence due to health, financial, or family reasons, does not constitute abandonment. See Monson v. First Nat., Bank of Bradenton, 497 F.2d 135, 138 (5th Cir.1974). The facts of the instant case facially carry the hallmarks of abandonment in that the Debtor moved out of the home, did not re-establish residence, and did not reside at the former marital home on the date she filed her Petition. However, there are two critical differences. First, the Debtor remains the co-owner of the property; second, the Debtor’s former husband and minor son still reside in the home. A similar fact pattern was presented in Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981). In Nationwide, after separating, the husband moved out while the wife and the couple’s three children remained in the marital home, of which she was joint owner. Nationwide obtained a judgment against the husband and attempted to levy on the husband’s one-half interest in the home. The husband claimed his one-half interest as exempt under the homestead exemption provided for by Fla. Const. art X, § 4. The court rejected Nationwide’s contention that the property was abandoned, relying on Vandiver v. Vincent, 139 So.2d 704 (Fla. 2d DCA 1962), where the court" }, { "docid": "13828929", "title": "", "text": "re Franzese, 383 B.R. 197, 203 (Bkrtcy.M.D.Fla.2008) (citing In re Brown, 165 B.R. 512, 514 (Bankr.M.D.Fla.1994)) (holding homestead established by actual use and occupancy coupled with an actual intent to live permanently in a house). A claim of homestead exemption in Florida is “liberally construed in the interest of protecting the family home,” In re Minton, 402 B.R. 380, 382-383 (Bankr.M.D.Fla.2008) (quoting Quigley v. Kennedy & Ely Ins., Inc., 207 So.2d 431, 432 (Fla.1968)), and is presumptively valid. Minton, 402 B.R. 380, 382-383 (Bankr.M.D.Fla.2008) (citing In re Colwell, 196 F.3d 1225, 1226 (11th Cir.1999)). The party challenging a homestead exemption, in this case, the Siblings, must “make a strong showing” that a debtor is not entitled to the claimed exemption. In re Franzese, 383 B.R. 197, 203 (Bankr.M.D.Fla.2008). The Siblings argue that the debtors were still living in the Adler Property in April 2009. They point to the fact that, after December 2008, either or both Mr. and Mrs. Harle slept over at the Adler Property a few more times. They also note that some of their furniture remained at the Adler Property for a period of time after they relocated to the Dog Leg Property. The Court acknowledges that leaving furniture at a property does constitute some indicia of intent to return to that property. See Monson v. First Nat. Bank of Bradenton (In re Monson), 497 F.2d 135, 138-39 (5th Cir.1974). The evidence did establish that the debtors kept a number of storage pods with their personal belongings at the Adler Property after December 2008, and that they did occasionally spend the night at their former home. The debtors’ explanation was credible. The Dog Leg Property, a mobile home, was occupied by several family members in addition to the debtors. Space was at a premium. They simply could not fit all of their personal belongings into the home. So, they kept them in storage pods at their former house for a few months. As they were cleaning out the Adler Property and moving their possessions into these storage pods, they occasionally would spend the night rather than drive" }, { "docid": "2675006", "title": "", "text": "of the effect of placing funds into annuities. In addition, debtor testified that one reason for purchasing the annuities was to protect the funds from her creditors. Taken together, debtor’s actions and testimony indicate an intent to keep assets from creditors and to hinder them in their attempt to satisfy their claims. The Court finds from the totality of the circumstances debtor intended to hinder, delay, or defraud creditors by placing the sale proceeds into exempt annuities. Consequently, the Court will sustain the objections to debtor’s claim of exemptions for the two Liberty National annuities. Homestead Dixie and Honda also object to debtor’s claiming the Lake City house as exempt homestead property. Pursuant to Article X, Section 4 of the Florida Constitution, an individual’s homestead is not subject to creditors claims. That section states: A homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family. Because Florida has opted out of the federal exemption scheme, debtors in bankruptcy are entitled to this homestead exemption. Dixie and Honda argue that debtor has abandoned her homestead and thus, is not entitled to claim it as exempt. Once property is imbued with homestead status, it remains homestead until it is abandoned. In re Ehnle, 124 B.R. 361 (Bankr.M.D.Fla.1991); Olesky v. Nicholas, 82 So.2d 510 (Fla.1955). Absence from the property is not determinative, rather intent is the critical factor in determining whether the homestead has been abandoned. Id. Thus the question is a factual one that requires the Court consider the facts and circumstances of each individual case. In re Boucher, 8 B.R. 713 (Bankr.M.D.Fla.1981); In re McCarthy, 13 B.R. 389 (Bankr.M.D.Fla.1981). This Court held in In re McCarthy that debtors were not entitled to claim their prior residence as homestead where they had received a" } ]

[ { "docid": "551853", "title": "", "text": "SEC Interpretive Release No. 33-4552, Nov. 6, 1962, 17 C.F.R. § 231.4552. Although not yet applied by a court in the context of the availability of an exemption under section 4(2), see The Value Line Fund, Inc. v. Marcus, S.D.N.Y.1965, CCH Fed.Secur. L.Rep. ¶ 91,523, there is no reason why it should not be if the facts warrant, Bowers v. Columbia General Corporation, D.Del.1971, 336 F.Supp. 609, 624-625. In the instant case, some basis for integration appears in the facts that (a) for the most part the offerings were made for the same general purpose, and (b) the parties recognized that the first financing in October, 1967 might be inadequate and additional financing might be required. On the other hand, everyone hoped and expected that the initial $630,000 would be sufficient to enable LPC to operate profitably. It was felt that deposits by tourists reserving places on package tours sponsored by LPC, known as the “customer deposit float”, would supplement its working capital sufficiently to enable it to prosper. Thereafter, each successive financing was expected by the defendants to be the last which would be required to make LPC self-supporting. A series of obstacles to profitability was encountered, many of them beyond the control of the company or the defendants who, incidentally, each invested $1,400,000 of their own funds. Specific acquisitions of subsidiaries and the charter of a cruise ship, MTS Orpheus, were not contemplated at the time of the first financing in October, 1967. The evidence simply did not show a single plan of financing. Moreover, the several offerings were not made at or about the same time, different classes of securities were issued and the prices of the securities varied. On balance, the integrated offering doctrine is clearly inapplicable. The one year statute of limitations provided by section 13 of the Act, 15 U.S.C. § 77m, runs from the date of the violation, in this instance the date of the sale or use of the mails. Shuman v. Sherman, D.Md.1973, 356 F.Supp. 911, 913, Bryant v. Uland, S.D.Tex.1971, 327 F.Supp. 439, 446. Defendants’ last sale to plaintiff was" } ]

[ { "docid": "13644970", "title": "", "text": "be made upon any possible state of facts, the nondisclosure was in connection with the purchase of a security [for section 10(b) and rule 10b-5 purposes]. Id. at 412-13; accord Ingénito, 376 F.Supp. at 1181-82. This Court finds the reasoning of the Goodman opinion persuasive and adopts its result as governing the facts in the case at bar. Also relevant to the question of integration are the cases considering whether an offering is to be considered nonpublie for purposes of the registration exemption under section 4(2) of the Securities Act, 15 U.S.C.A. § 77d(2) (West 1981). The Securities and Exchange Commission lists five factors to consider when determining whether an offering is integrated: (1) whether the offerings were part of a single plan of financing, (2) whether the offerings involved issuance of the same class of secu rities, (8) whether the offerings were made at or about the same time, (4) whether the same type of consideration was received, and (5) whether the offerings were made for the same general purpose. 1 Fed.Sec. L.Rep. (CCH) 11 2780 (1973); Securities & Exchange Commission v. Murphy, 626 F.2d 633, 645 (9th Cir.1980). Under this analysis, the sales of the limited partnership can arguably be viewed as integrated, especially in view of factors (2), (4), and (5). The securities’ were alFHimfed partnership interests, the consideration received wasofthe same type, and the offerings were made for the same general purpose of funding hydrocarbon developments. Although the plaintiff does not advert to the first factor, the financing involved here was part of an overall plan for financing the REB defendants’ operations. Although the offerings were distinctly separated in time, the reasoning of the Murphy court is persuasive: the time factor is heavily outweighed by the remaining factors, which militate in favor of a finding of integration. 626 F.2d_at 646. The plaintiff also alleges that certain amendments to the limited partnership agreements made a significant change in those investments and that such amendments are also actionable under section 10(b) and rule 10b-5. In support of this allegation, the plaintiff cites Keys v. Wolfe, 709 F.2d 413" }, { "docid": "718317", "title": "", "text": "12(2), Currie v. Cayman Resources Corp., 595 F.Supp. 1364, 1378 (N.D.Ga.1984), that ipse dixit is directly contrary to Judge Haight’s explicit and persuasive finding that the doctrine does not impact upon section 13. Homburger, supra, [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) at 94,426 & n. 3. See also Hayden v. McDonald, 742 F.2d 423, 436-37 (8th Cir.1984), (doctrine is inapplicable to statute of limitations under the Minnesota Blue Sky Act). Given that section 10 is broader in scope than either section 11 or section 12(2), Goodman v. Epstein, supra, 582 F.2d at 414, and given the strict construction typically afforded section 13, see Fischer v. International Telephone and Telegraph Corp., 391 F.Supp. 744 (E.D.N.Y.1975), expansion of the law to permit application of the “integrated offering doctrine” to this case is inappropriate. “The integration theory, although appropriate to determine whether the seller’s total effect on the marketplace merits any governmental regulation, should not be used to alter the statute of repose on private legal actions which flow from that governmental regulation once properly imposed.” Hayden v. McDonald, supra, 742 F.2d at 437. Moreover, the allegations in the complaint do not even hint at an “integrated offering.” Indeed, they negate that possibility. Paragraph 5 refers to “specified Petro-Lewis partnership programs.” Amended class action complaint (“complaint”) ¶ 5(b). Thus, section 13’s three-year limit bars all but Brown’s claim arising out of his January 1983 investment. That claim is barred by the one-year provision in section 13. b) The One-Year Time Period In order to satisfy section 13’s one-year requirement, the complaint must set forth the time and circumstances of the discovery of the fraudulent statements, the reason why discovery was not made earlier if more than one year has elapsed since the fraudulent conduct occurred, and the diligent efforts which plaintiff undertook in making or seeking such discovery. Hill v. Der, supra, 521 F.Supp. at 1389. See Ingenito v. Bermec Corp., 441 F.Supp. 525, 553-55 (S.D.N.Y.1977) (scrutinizing section 11 and 12(2) claims); Homburger, supra, [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) at 94,427 (applying same pleading requirements to a section 12(2) claim); Brick v. Dominion Mortgage" }, { "docid": "22084914", "title": "", "text": "under the private offering exemption in § 4(2) of the 1933 Act, 15 U.S.C. § 77(d)(2) (1970), or under Rule 146, 17 C.F.R. § 230.146 (1979), which each exempt certain private placements. These exemptions from registration provisions are construed narrowly, SEC v. Blazon Corp., 609 F.2d 960, 968 (9th Cir. 1979), in order to further the purpose of the Act: “To provide full and fair disclosure of the character of the securities, . . . and to prevent frauds in the sale thereof . . .” Securities Act of 1933, Ch. 38, Tit. 1, 48 Stat. 74 (1933). Once the SEC introduces evidence that a defendant has violated the registration provisions, the defendant then has the burden of proof in showing entitlement to an exemption. SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494 (1953); Doran v. Petroleum Management Corp., 545 F.2d 893, 899 (5th Cir. 1977); Pennaluna & Co v. SEC, 410 F.2d 861, 865 (9th Cir. 1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 562, 24 L.Ed.2d 499 (1970). On a motion for summary judgment, however, “it is the moving party who carries the burden of proof; he must show that no genuine issue of material fact exists . even though at trial his opponent would have the burden of proving the facts alleged.” Doff v. Brunswick Corp., 372 F.2d 801, 805 (9th Cir. 1966), cert. denied, 389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71 (1967). See also BAW Mfg. Co. v. Slaks Fifth Avenue, Ltd., 547 F.2d 928, 930-31 (5th Cir. 1977). Thus, the SEC was entitled to summary judgment only if it demonstrated that there was no genuine issue of material fact as to Murphy’s affirmative defense or that, viewing the evidence and the inferences which could be drawn therefrom in the light most favorable to Murphy, the SEC was clearly entitled to prevail as a matter of law. See Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1254 (9th Cir. 1976); 6 Moore’s Federal Practice Part 2 ¶ 56.17[4] (1979). After reviewing the pleadings and" }, { "docid": "321107", "title": "", "text": "an alleged private offering exemption under federal securities law, and found on the facts that the doctrine should not apply. Id. at 1106— 1107. The Livens court did not apply the integration theory to defeat the defendants’ statute of limitations defenses therein. See id. at 1107-1108. The other case relied on by the district court herein, Kennedy v. Tallant, [1976-1977 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 95,779 (S.D.Ga. 1976), aff'd, 710 F.2d 711 (11th Cir.1983), employed a variety of concepts, including integration, to toll the statute of limitations in a securities fraud case in which the defendants concealed much of their fraudulent activity. See id. at 90,823-90,824. On appeal, the Eleventh Circuit declined to review the integration theory, resting its affirmance of the statute of limitations question on alternative grounds. Kennedy v. Tallant, 710 F.2d 711, 716 n. 3 (11th Cir.1983). Even assuming that either of these district court cases stands for the proposition that the integration theory might avoid the statute of limitations in an action for failure to register under federal law or the law of other states, the cases do not accurately reflect Minnesota law on the subject. In the first place, the Minnesota Supreme Court has strictly construed the statute of limitations in prior Minnesota securities law to deny an equitable tolling of the limitations period even in the face of allegations of fraudulent concealment by the defendant. Kopperud v. Agers, 312 N.W.2d 443,. 446-447 (Minn.1981). The plaintiffs herein cite no authority indicating a more lenient approach to the statute of limitations in the revised Minnesota Blue Sky Act by any Minnesota court. In addition, one federal judge applied the limitations period in pre-1973 Minnesota securities law separately to transactions spanning several years when using that limitations period in a federal securities fraud action, see Bailey v. Piper, Jaffray & Hopwood, Inc., 414 F.Supp. 475, 483 & n. 8 (D.Minn.1976), and another denied equitable tolling of the statute of limitations in a nonregistration claim under the present Minnesota Blue Sky Act, Appelbaum v. Ceres Land Co., 546 F.Supp. 17, 20-21 (D.Minn.1981), aff'd, 687 F.2d 261, 263 (8th" }, { "docid": "15029132", "title": "", "text": "units offered, (3) the size of the offering, and (4) the manner of the offering. Id. The court further explained that the ultimate issue is “ ‘whether the particular class of persons affected need the protection of the Act.’ ” Id. (quotation omitted). The former Fifth Circuit stated that one of the defendants had not carried his burden of proving the number or identity of the offerees, and thus, he did not meet the four-factor test with regard to the plaintiffs’ Section 12(a)(1) claim. Id. at 427. Accordingly, the court reversed the judgment for this defendant. 626 F.2d 421. Two important factors distinguish Ral-ston Punna, Swenson, and most of the other cases on which Plaintiffs rely from the present action. First, the issue in these cases was not whether the offeror was subject to liability for fraud under Section 12(a)(2). Second, most of these cases were decided before Regulation D was promulgated. See, e.g., Doran v. Petroleum Mgmt. Corp., 545 F.2d 893, 897 (5th Cir.1977) (pre-Regulation D case examining factors when addressing Sections 5 and 12(a)(1) claims); SEC v. Murphy, 626 F.2d 633 (9th Cir.1980) (pre-Regulation D case affirming summary judgment against the defendant where violations of Sections 5 and 17 of the Act and Section 10(b) of the Securities Exchange Act were involved, but not of Section 12(a)(2)); Cook v. Avien, 573 F.2d 685, (1st Cir.1978) (ex amining various factors to determine whether an offering was public when addressing the plaintiffs’ Section 12(a)(1) claim); SEC v. Continental Tobacco Co. of South Carolina, 463 F.2d 137 (5th Cir.1972) (involving an alleged failure to register an offering, not a Section 12(a)(2) claim); Hill York Corp. v. American Internad Franchises, 448 F.2d 680, 695 (5th Cir.1971) (examining specific factors of the offering in assessing a Section 12(a)(1) claim, and wrongly, in light of the future decision in Gustafson, stating that “contrary to a Section 12(1) violation, liability under Section 12(2) would not be affected by a finding that the offering was private”). In Ralston Purina, the issue was whether the SEC could enjoin the offeror for failing to register its offering. Ralston" }, { "docid": "22084912", "title": "", "text": "1. Security Murphy argues on appeal that the shares in limited partnerships in the cable television systems were not securities. That argument is disingenuous. An investment contract is a security. § 2(1), Securities Act of 1933, 15 U.S.C. § 77b(l) (1971); § 3(aX10), 15 U.S.C. § 78c(a)(10) (1971). Under the test for an investment contract established in SEC v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946), a limited partnership generally is a security, Goodman v. Epstein, 582 F.2d 388, 408-09 (7th Cir. 1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); McGreghar Land Co. v. Meguiar, 521 F.2d 822, 824 (9th Cir. 1975); 1 A. Bromberg, Securities Law: Fraud § 4.6 (332) (1969), because, by definition, it in volves investment in a common enterprise with profits to come solely from the efforts of others. See SEC v. W. J. Howey Co., supra, 328 U.S. at 301, 66 S.Ct. at 1104; Black v. Payne, 591 F.2d 83, 87 (9th Cir.), cert. denied, 444 U.S. 867, 100 S.Ct. 139, 62 L.Ed.2d 90 (1979); SEC Release No. 33-3877, 32 Fed.Reg. 11705 (1967). In SEC v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973), this court held that it would not confine the Howey test to situations where the term “solely from the efforts of others” applied literally, but would find that element satisfied when “the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Id. at 482. Here the investors had no managerial role whatsoever: the limited partnership interests clearly are securities. 2. Unregistered and Sold in Interstate Commerce Murphy admitted in the pretrial order that the limited partnership interests were not registered, and he offered nothing to rebut the SEC’s evidence that the securities were offered and sold in interstate commerce. 3. Not Exempt from Registration Murphy contends, however, that the limited partnership interests were exempt from registration" }, { "docid": "22084916", "title": "", "text": "the affidavits that were before the district court on the summary judgment motion, we have concluded that there was no genuine issue of material fact and that, therefore, the court’s grant of summary judgment was proper. The question whether the sales of limited partnership interests in Intertie’s cable systems were entitled to exemption from registration requirements as private offerings is a very difficult one. The difficulty does not preclude summary judgment, however, because it arises not from complex or disputed facts but, instead, from the application of well-settled law to undisputed, albeit unusual, factual circumstances. A court assessing the availability of a private offering exemption focuses upon the issuer and the offerees, paying particular attention to the relationship between the two. See, e. g., Cook v. Avien, Inc., 573 F.2d 685, 691 (1st Cir. 1978); Doran v. Petroleum Management Corp., Inc., supra, 545 F.2d at 900-02; Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680, 690 (5th Cir. 1971). This assessment often requires a careful inquiry into the facts surrounding the offering, see, e. g., Doran v. Petroleum Management Corp., Inc., supra, 545 F.2d at 900-04; Parvin v. Davis Oil Co., 524 F.2d 112, 118 (9th Cir. 1975); SEC v. Asset Management Corp., [1979] Fed.Sec.L.Rep. (CCH) 197,278 at 96,970 (S.D.Ind.1979), and, of course, it requires knowledge of who was the issuer of the securities. The problem in this case, as the SEC conceded at oral argument, is that it is not clear who was the issuer of the securities at suit. As defined in the 1933 Act, “ ‘issuer’ means every person who issues or proposes to issue any security.” § 2(4), 15 U.S.C. § 77b(4) (1970). In a corporate offering, the issuer generally is the company whose stock is sold. SEC v. Ralston Purina Co., 346 U.S. 119, 120, 73 S.Ct. 981, 982, 97 L.Ed. 1494 (1953); SEC v. Koracorp Industries, 575 F.2d 692, 695 (9th Cir.), cert. denied sub nom. Helfat v. SEC, 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); SEC v. Universal Major Industries Corp., 546 F.2d 1044, 1045 (2d Cir. 1976)," }, { "docid": "13644972", "title": "", "text": "(5th Cir.1983), which involved investment contracts pertaining to pecan orchards operated by a corporate grower. In this case, the appeals court held that the test determining whether a particular transaction meets the requirement of section 10(b) and rule 10b-5 that it be “in connection with a purchase or sale” is met whenever there has been a voluntary amendment to an existing security if there has been “such a significant change in the nature of the investment or in the investment risks as to amount to a new investment.” Id. at 416-17. Accepting the plaintiff’s allegations as true, as well as all factual inferences to be derived therefrom, it must be said that the enumerated capital contributions and amendments adequately support the plaintiff’s allegation that the ongoing relationship of the parties involved an integrated offering. The plaintiff alleges that the defendants made untrue representations of material facts and otherwise engaged in fraudulent conduct from the time of his initial purchase until the date of his last capital contribution. If the series of investment decisions constituted an integrated offering under the Goodman framework, and the purportedly fraudulent concealment occurred throughout this period, then the date of the final capital contribution is the date on which the limitations period begins to run. See Hill v. Der, 521 F.Supp. 1370, 1386 (D.Del.1981) (under the Goodman doctrine the plaintiffs’ rule 10b-5 claim accrued when final payments were made to the defendant on letters of credit); Hill v. Equitable Trust Co., 562 F.Supp. 1324, 1339 (D.Del.1983). This date, September 1, 1981, is subject to revision upon the full development of the facts in this case. (2) Counts II and IV: The plaintiff’s second and fourth claims are for alleged violations of sections 12(2) and 12(1) of the Securities Act. Mr. Echols asserts that these claims are absolutely barred by their associated statute of limitations, section 13 of the Securities Act, 15 U.S.C.A. § 77m (West 1981). While the defendant is correct in asserting that the statute of limitations must be pleaded as a substantive element of the plaintiff’s Securities Acts claims, e.g., In re Longhorn Securities" }, { "docid": "22084913", "title": "", "text": "U.S. 867, 100 S.Ct. 139, 62 L.Ed.2d 90 (1979); SEC Release No. 33-3877, 32 Fed.Reg. 11705 (1967). In SEC v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973), this court held that it would not confine the Howey test to situations where the term “solely from the efforts of others” applied literally, but would find that element satisfied when “the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Id. at 482. Here the investors had no managerial role whatsoever: the limited partnership interests clearly are securities. 2. Unregistered and Sold in Interstate Commerce Murphy admitted in the pretrial order that the limited partnership interests were not registered, and he offered nothing to rebut the SEC’s evidence that the securities were offered and sold in interstate commerce. 3. Not Exempt from Registration Murphy contends, however, that the limited partnership interests were exempt from registration under the private offering exemption in § 4(2) of the 1933 Act, 15 U.S.C. § 77(d)(2) (1970), or under Rule 146, 17 C.F.R. § 230.146 (1979), which each exempt certain private placements. These exemptions from registration provisions are construed narrowly, SEC v. Blazon Corp., 609 F.2d 960, 968 (9th Cir. 1979), in order to further the purpose of the Act: “To provide full and fair disclosure of the character of the securities, . . . and to prevent frauds in the sale thereof . . .” Securities Act of 1933, Ch. 38, Tit. 1, 48 Stat. 74 (1933). Once the SEC introduces evidence that a defendant has violated the registration provisions, the defendant then has the burden of proof in showing entitlement to an exemption. SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494 (1953); Doran v. Petroleum Management Corp., 545 F.2d 893, 899 (5th Cir. 1977); Pennaluna & Co v. SEC, 410 F.2d 861, 865 (9th Cir. 1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 562, 24" }, { "docid": "718315", "title": "", "text": "class not yet certified. The claims of the named plaintiffs must stand or fall on their own. Cf. 3B J. Moore & J. Kennedy, Moore’s Federal Practice ¶23.90, at 23-557 (1985) (“if the statute of limitations has run on a claim prior to the commencement of suit, it is not revived by the class action”). The plaintiffs also contend that the partnerships sold before 1982 were part of an “integrated offering,” and that the three year limitations period commenced to run upon the conclusion of that offering in 1984. The integrated offering doctrine does not, in our view, bear on section 13. The Securities Exchange Commission (“SEC”) developed the concept of an “integrated offering” to aid the determination of whether a sale of securities is part of a private offering exempted by section 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2) (1982), from the registration requirements of that Act. See 17 C.F.R. § 280.447 (1985). The courts have often applied the doctrine in that context to gauge the size and scope of an offering. That determination, in turn, guides the calculation of the number of persons or entities deemed to have been offered a particular security. See, e.g., SEC v. Murphy, 626 F.2d 633 (9th Cir.1980); Doran v. Petroleum Management Corp., 545 F.2d 893 (5th Cir.1977); Livens v. William D. Witter, Inc., 374 F.Supp. 1104 (D.Mass.1974). Two courts have applied a somewhat altered version of the SEC’s “integrated offering” concept to toll the applicable statute of limitations in a section 10 action. Goodman v. Epstein, 582 F.2d 388, 409-414 (7th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Hill v. Der, 521 F.Supp. 1370, 1386 (D.Del.1981). A third decision applying the doctrine in a section 10 action, Kennedy v. Tallant, [1976-77 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 95,779 at 90,823-24 (D.Ga.1976), was affirmed on other grounds, Kennedy v. Tallant, 710 F.2d 711, 716-17 (11th Cir.1983), with the Court of Appeals expressly declining to consider the doctrine. Although one district judge has held implicitly that the “integrated offering” doctrine applies to claims under section" }, { "docid": "569125", "title": "", "text": "was affirmed in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). The plaintiffs in Birnbaum ended up after the alleged fraud exactly where they had begun — holders of Newport stock. The plaintiffs in Blue Chip likewise ended up after the alleged fraud exactly where they had begun — non-holders of Blue Chip stock. Mayer began as owner of limited partnership interests in partnerships owning oil and gas properties and ended up after the alleged fraud as a stockholder of Integrated, with the partnerships owning no physical assets. Something must have happened along the line. A threshold issue, to wit, whether Mayer’s interest in the Mark Energy Partnerships is a security under § 10(b) of the Securities Exchange Act of 1934 is readily resolved. An investment contract is a security under § 2(1) of the Securities Act of 1933 and § 3(a)(10) of the Securities Exchange Act of 1934. Under the test whether an investment contract is a security established in SEC v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946), a limited partnership interest generally is a security because such an interest involves investment “in a common enterprise with profits to come solely from the efforts of others.” Id. See SEC v. Aqua-Sonic Products Corp., 687 F.2d 577, 581-84 (2 Cir.), cert. denied, — U.S. —, 103 S.Ct. 568, 74 L.Ed.2d 931 (1982). Where the investing limited partners exercised no managerial role in the partnership’s affairs, courts have held that limited partnership interests are securities, at least when, as here, there were a considerable number of limited partners. See, e.g., Goodman v. Epstein, 582 F.2d 388, 406-08 (7 Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); SEC v. Murphy, 626 F.2d 633, 640-41 (9 Cir.1980); SEC v. Holschuh, 694 F.2d 130, 137 (7 Cir.1982); Hirsch v. duPont, 396 F.Supp. 1214, 1227-28 (S.D.N.Y.1975), aff’d, 553 F.2d 750 (2 Cir.1977). Commentators have approved. See Jennings & Marsh, Securities Regulation: Cases and Materials 225 (5th ed. 1982); Loss, Fundamentals of Securities" }, { "docid": "18827586", "title": "", "text": "terms “broker-dealer” or “registered representative” and the interplay between various securities acts misstated the law. DeVries has not shown how a correct statement of the law, without a conclusion as to how the law should be applied, affected his defense. We conclude that the admission of expert testimony concerning statutory definitions and the relationship between various securities acts was harmless error. DeVries contends, however, that the expert misstated the law concerning the private offering exemption from the registration requirement. The expert stated that one of the requirements for the private offering exemption was that “you must make a filing on the SEC notifying them that you have availed yourself of the exemption.” (R. V, at 819). This was incorrect. Section 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2), exempts from the registration requirements of 15 U.S.C. § 77e “transactions by an issuer not involving any public offering.” An offering is considered private only if limited to investors who have no need for the protection provided by registration. SEC v. Ralston Purina Co., 346 U.S. 119, 125, 73 S.Ct. 981, 984, 97 L.Ed. 1494 (1953); Lively v. Hirschfeld, 440 F.2d 631, 632 (10th Cir.1971). To determine if an offering is sufficiently limited courts focus on such factors as: (1) the number of offerees; (2) the sophistication of the offerees, including then-access to the type of information that would be contained in a registration statement; and (3) the manner of the offering. See, e.g., Mark v. FSC Securities Corp., 870 F.2d 331, 333 (6th Cir.1989); Cook v. Avien, Inc., 573 F.2d 685, 691 (1st Cir.1978); Doran v. Petroleum Mang. Corp., 545 F.2d 893, 900 (5th Cir.1977). But § 4(2) of the 1933 Act does not require an issuer to give notice to the SEC. DeVries contends that this misstatement undercut his theory that he did not willfully violate the registration requirement because he believed in good faith that he had qualified for the private offering exemption. Despite the expert’s misstatement of the law we conclude that the admission of the testimony was harmless because the issue whether DeVries believed" }, { "docid": "1836078", "title": "", "text": "defendants was the failure to disclose to Currie that Mr. Abrams, the largest limited partner in Reb-Pet, did not participate in the exchange offer. Section 12(2) applies only to material misrepresentations and omissions. 15 U.S.C. §771 (2). In TSC Indus. Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), the Supreme Court stated that the test of materiality is whether there is a substantial likelihood that a reasonable investor would consider the omitted facts or misrepresentations important in deciding whether to invest. See id. at 449, 96 S.Ct. at 2132; Kennedy v. Tallant, 710 F.2d 711, 719 (11th Cir.1983); SEC v. Carriba Air, Inc., 681 F.2d 1318, 1323 (11th Cir.1982). As the Fifth Circuit warned in Hill York, “[a] causation test should not be read into this Section.” 448 F.2d at 696. We believe that each of the alleged misrepresentations and omissions by the Cayman defendants was material. Appellees argue that even if the Cayman representatives made a misrepresentation, appellant did not establish that he had no knowledge of any untruth because the proxy statement and prospectus mailed to Currie in connection with the exchange offer provided information about which RebPet liabilities were assumed by Cayman. Appellees, however, cannot receive a directed verdict on the basis that the information was hidden in a proxy statement; this presents a question of fact for the jury. Because this court must view the evidence in a light most favorable to the nonmoving party, Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969), we conclude that a jury may have drawn a rational inference in favor of Currie and that the district court inappropriately granted the motion for directed verdict. B. Appellant argues that the district court erroneously dismissed count three of his amended complaint, which sought damages for an alleged violation of section 17(a) of the Securities Act of 1933. The district court dismissed the claim on the ground that no implied private cause of action exists under section 17(a). Although some circuits hold that section 17(a) implies a private right of action, the better reasoned authority" }, { "docid": "17836744", "title": "", "text": "as defined by 17 C.F.R. § 230.144A and Rule 144A, which “governs ‘private resales of securities to institutions’ and defines the ‘qualified institutional buyer[s]’ authorized to purchase in a private placement.’ ” Id. at 454. Lead Plaintiff in opposition argues that under Fifth Circuit law, whether there is a public offering is a question of fact that must be examined under the circumstances of each ease, with the burden of proof on Deutsche Bank Entities. Hill York Corp. v. Am. International Franchises, Inc., 448 F.2d 680, 687 (5th Cir.1971); Doran v. Petroleum Management Corp., 545 F.2d 893, 899 (5th Cir.1977). Lead Plaintiff insists that Deutsche Bank Entities cannot prove their affirmative defense because the smallest offering underwritten by them was $500 million, which by itself qualifies each offering as a public sale. SEC v. Murphy, 626 F.2d 633, 646 (9th Cir.1980) (“Without question [a sale of $7.5 million in securities] is a sizeable offering, and it is one we are inclined to consider as public .... ”). Furthermore, argues Lead Plaintiff, the securities underwritten by Defendants were offered to a large number of investors. Nor, Deutsche Bank Entities insist, does Lead Plaintiff state a claim for control person liability under § 15 of the 1933 Act or § 20(a) of the 1934 Act because it has failed to allege facts beyond a defendant’s position or title to show that the defendant had actual power or control over the controlled person. See this Court’s December 12, 2002 memorandum and order (# 1194) at 64-67. The Court disagrees with Defendants and finds that if Lead Plaintiff has stated a claim for liability under § 10(b) of the 1934 Act and/or § 12(a)(2) of the 1933 Act, it has sufficiently stated a claim for control person liability. As pointed out in its memorandum (# 1707 at 35), the complaint alleges that Deutsche Bank AG is a integrated financial services institution composed of divisions and subsidiaries including Deutsche Bank Securities Inc. and Deutsche Bank Trust Company Americas, the later two are wholly owned and controlled subsidiaries of Deutsche Bank AG through which Deutsche Bank" }, { "docid": "6732637", "title": "", "text": "would most likely also fail under the private offering exemption. Section 4 of the 1933 Act, 15 U.S.C. § 77d, provides certain exemptions from the registration requirements of Section 5. Section 4(2) provides an exemption for \"transactions by an issuer not involving any public offering.” 15 U.S.C. § 77d(2). The applicability of Section 4(2) is dependent upon whether the particular class of persons affected needs the protection of the act. \"An offering to those who are shown to be able to fend for themselves is not a public offering.\" S.E.C. v. Int'l. Mining Exchange, 515 F.Supp. 1062, 1071 (D.Colo.1981), citing, S.E.C. v. Ralston Purina Co., 346 U.S. 119, 125, 73 S.Ct. 981, 984, 97 L.Ed. 1494 (1953). Generally, a court will consider: 1) the number of purchasers, 2) their relationship to the issuer and each other, 3) the size of the offering and 4) the manner of the offering. Goodman v. DeAzoulay, 554 F.Supp. 1029, 1036 (E.D.Pa.1983); S.E.C. v. Int'l Mining Exchange, 515 F.Supp. at 1071; Doran v. Petroleum Management Corp., 545 F.2d 893, 900 (5th Cir.1977). . The Court will not consider matters outside the pleadings which were submitted by some of the parties. Therefore we need not treat the defendants' 12(b)(6) motions as motions for summary judgment. See Fed.R.Civ.P. 12(b). The Agreements, which were submitted by the plaintiffs with the amended complaint and were incorporated therein as exhibits, are necessarily part of the pleadings and will be considered by the Court for the purpose of resolving the defendants’ motions. Fed.R.Civ.P. 10(c). In addition, in the event of an inconsistency between averments in the complaint and the actual provisions of the Agreements, the Agreements will prevail. Evans Products Co. v. J.H. Swanger, 363 F.Supp. 808, 809 n. 1 (E.D.Pa.1973). . Section 2(10) of the 1933 Act defines a prospectus as \"any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security.\" 15 U.S.C. § 77b(2). . Furthermore, it should be noted that by the terms of paragraphs 6(B) and 13(A) even if the" }, { "docid": "22084911", "title": "", "text": "1280 (9th Cir. 1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980). Applying these standards, a reviewing court must examine the record to determine whether there was an absence of dispute as to the facts material to a registration violation. We have examined the pleadings, pretrial order, affidavits, and depositions, including Murphy’s testimony before the SEC, and the conclusions that follow reflect all inferences that can be drawn from those facts in the light most favorable to Murphy. See Spectrum Financial Cos. v. Marconsult, Inc., 608 F.2d 377, 380 (9th Cir. 1979). A. Elements of a Section 5 Violation Section 5 of the 1933 Act forbids the offer or sale of unregistered securities in interstate commerce, 3 L. Loss, Securities Regulation 1693 (2d ed. 1961), but § 5 does not apply if the securities are exempt from registration as a private offering, § 4(2), 15 U.S.C. § 77d(2) (1970), or are not offered or sold in a transaction by an issuer, underwriter or dealer, § 4(1), 15 U.S.C. § 77d(l) (1970). 1. Security Murphy argues on appeal that the shares in limited partnerships in the cable television systems were not securities. That argument is disingenuous. An investment contract is a security. § 2(1), Securities Act of 1933, 15 U.S.C. § 77b(l) (1971); § 3(aX10), 15 U.S.C. § 78c(a)(10) (1971). Under the test for an investment contract established in SEC v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946), a limited partnership generally is a security, Goodman v. Epstein, 582 F.2d 388, 408-09 (7th Cir. 1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); McGreghar Land Co. v. Meguiar, 521 F.2d 822, 824 (9th Cir. 1975); 1 A. Bromberg, Securities Law: Fraud § 4.6 (332) (1969), because, by definition, it in volves investment in a common enterprise with profits to come solely from the efforts of others. See SEC v. W. J. Howey Co., supra, 328 U.S. at 301, 66 S.Ct. at 1104; Black v. Payne, 591 F.2d 83, 87 (9th Cir.), cert. denied, 444" }, { "docid": "321106", "title": "", "text": "within a relatively short period of time as relevant to the isolated sale exemption in prior Minnesota securities law. See Anderson v. Mikel Drilling Co., 257 Minn. 487, 102 N.W.2d 293, 298-299 (1960). The district court then assumed that the same integration theory could be used to avoid statute of limitations and jurisdictional defenses to the nonregistration claims of the plaintiffs, which all arose out of the defendants’ single oil and gas- enterprise. We do not accept this assumption and hold that the statute of limitations and jurisdictional requirements of the Minnesota Blue Sky Act must be applied on remand to each purchase which the plaintiffs wish to rescind as a separate transaction. (1) Statute of Limitations. The district court cited two cases to support its application of the integration theory to the statute of limitations defense in the instant case. Neither of these cases controls. In Livens v. William D. Witter, Inc., 374 F.Supp. 1104 (D.Mass.1974), the federal district court for the District of Massachusetts discussed the integrated offering doctrine in the context of an alleged private offering exemption under federal securities law, and found on the facts that the doctrine should not apply. Id. at 1106— 1107. The Livens court did not apply the integration theory to defeat the defendants’ statute of limitations defenses therein. See id. at 1107-1108. The other case relied on by the district court herein, Kennedy v. Tallant, [1976-1977 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 95,779 (S.D.Ga. 1976), aff'd, 710 F.2d 711 (11th Cir.1983), employed a variety of concepts, including integration, to toll the statute of limitations in a securities fraud case in which the defendants concealed much of their fraudulent activity. See id. at 90,823-90,824. On appeal, the Eleventh Circuit declined to review the integration theory, resting its affirmance of the statute of limitations question on alternative grounds. Kennedy v. Tallant, 710 F.2d 711, 716 n. 3 (11th Cir.1983). Even assuming that either of these district court cases stands for the proposition that the integration theory might avoid the statute of limitations in an action for failure to register under federal law or the" }, { "docid": "718314", "title": "", "text": "the plaintiffs, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957), are barred by the applicable statute of limitations, a) The Three-Year Time Period The three-year time limit in section 13 is an absolute outer limit. Brick v. Dominion Mortage, supra, 442 F.Supp. at 289-90 (section 11); Homburger, supra, [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) at 94,426 (section 12(2)). Only plaintiff Brown’s January 1983, purchase, and the corresponding registration statement, were within the three year period. Brown’s three other investments and Bresson’s June 1981 purchase all occurred at least three, years before the complaint was filed on February 13, 1985. The corresponding registration statements were, of course, issued outside of the three year window. The plaintiffs, nevertheless, maintain that the three year limit does not bar their claims based upon the pre-1982 purchases. They first assert that post-1982 purchases of Petro-Lewis partnerships by certain unidentified class members save the named plaintiffs’ claims. This argument is patently ludicrous. The Court cannot now consider the claims of unidentified members of a class not yet certified. The claims of the named plaintiffs must stand or fall on their own. Cf. 3B J. Moore & J. Kennedy, Moore’s Federal Practice ¶23.90, at 23-557 (1985) (“if the statute of limitations has run on a claim prior to the commencement of suit, it is not revived by the class action”). The plaintiffs also contend that the partnerships sold before 1982 were part of an “integrated offering,” and that the three year limitations period commenced to run upon the conclusion of that offering in 1984. The integrated offering doctrine does not, in our view, bear on section 13. The Securities Exchange Commission (“SEC”) developed the concept of an “integrated offering” to aid the determination of whether a sale of securities is part of a private offering exempted by section 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2) (1982), from the registration requirements of that Act. See 17 C.F.R. § 280.447 (1985). The courts have often applied the doctrine in that context to gauge the size and scope of" }, { "docid": "6857431", "title": "", "text": "and (3) the use of the mails or facilities of interstate commerce in connection with the sale or offer. Doran v. Petroleum Management Corp., 545 F.2d 893, 899 (5th Cir. 1977); Lewis v. Walston & Co., Inc., 487 F.2d 617, 621 (5th Cir. 1973). Section 15 of the 1933 Act imposes liability on any person who “controls” a seller or offeror of unregistered securities. See 15 U.S.C.A. 77o. The plaintiff’s burden under § 15 is to establish control. Hill York, 448 F.2d at 694. The defendant can rebut a prima facie case of controlling person liability with evidence that he “had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.” 15 U.S.C.A. § 77o; see Hill York, 448 F.2d at 695 n.22; Safeway Portland Employees' Federal Credit Union v. Wagner & Co., Inc., 501 F.2d 1120, 1124 (9th Cir. 1974). B. The Private Offering Exemption Section 4(2) of the 1933 Act, 15 U.S.C.A. § 77d(2), exempts from the registration requirements “transactions by an issuer not involving any public offering.” The so-called private offering exemption is an affirmative defense which must be raised and proved by the defendant. See, e. g., SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494 (1953); Doran, 545 F.2d at 893; Woolf v. S.D. Cohn & Co., 515 F.2d 591, 608-09 (5th Cir. 1975), vacated and remanded on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976). Whether an offering is public or private is a question of fact which must be resolved in light of the particular circumstances of each case. See Hill York, 448 F.2d at 687. There are four factors that we have found to be useful reference points in evaluating the character of a given offering: 1. The number of offerees and their relationship to each other and to the issuer. 2. The number of units offered. 3. The size of the offering. 4. The manner of the offering. SEC v. Continental Tobacco" }, { "docid": "718316", "title": "", "text": "an offering. That determination, in turn, guides the calculation of the number of persons or entities deemed to have been offered a particular security. See, e.g., SEC v. Murphy, 626 F.2d 633 (9th Cir.1980); Doran v. Petroleum Management Corp., 545 F.2d 893 (5th Cir.1977); Livens v. William D. Witter, Inc., 374 F.Supp. 1104 (D.Mass.1974). Two courts have applied a somewhat altered version of the SEC’s “integrated offering” concept to toll the applicable statute of limitations in a section 10 action. Goodman v. Epstein, 582 F.2d 388, 409-414 (7th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Hill v. Der, 521 F.Supp. 1370, 1386 (D.Del.1981). A third decision applying the doctrine in a section 10 action, Kennedy v. Tallant, [1976-77 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 95,779 at 90,823-24 (D.Ga.1976), was affirmed on other grounds, Kennedy v. Tallant, 710 F.2d 711, 716-17 (11th Cir.1983), with the Court of Appeals expressly declining to consider the doctrine. Although one district judge has held implicitly that the “integrated offering” doctrine applies to claims under section 12(2), Currie v. Cayman Resources Corp., 595 F.Supp. 1364, 1378 (N.D.Ga.1984), that ipse dixit is directly contrary to Judge Haight’s explicit and persuasive finding that the doctrine does not impact upon section 13. Homburger, supra, [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) at 94,426 & n. 3. See also Hayden v. McDonald, 742 F.2d 423, 436-37 (8th Cir.1984), (doctrine is inapplicable to statute of limitations under the Minnesota Blue Sky Act). Given that section 10 is broader in scope than either section 11 or section 12(2), Goodman v. Epstein, supra, 582 F.2d at 414, and given the strict construction typically afforded section 13, see Fischer v. International Telephone and Telegraph Corp., 391 F.Supp. 744 (E.D.N.Y.1975), expansion of the law to permit application of the “integrated offering doctrine” to this case is inappropriate. “The integration theory, although appropriate to determine whether the seller’s total effect on the marketplace merits any governmental regulation, should not be used to alter the statute of repose on private legal actions which flow from that governmental regulation once properly imposed.” Hayden v. McDonald," } ]

[ { "docid": "22711094", "title": "", "text": "States, 275 U. S. 192 (1927); Go-Bart Importing Co. v. United States, 282 U. S. 344, 358 (1931); United States v. Lefkowitz, 285 U. S. 452, 465 (1932); Harris v. United States, 390 U. S. 234, 236 (1968); Frazier v. Cupp, 394 U. S. 731 (1969). This rule merely reflects an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property. Applying these principles, we conclude that Officer Maples properly seized the green balloon from Brown’s automobile. The Court of Criminal Appeals stated that it did not “question . . . the validity of the officer’s initial stop of appellant’s vehicle as a part of a license check,” 617 S. W. 2d, at 200, and we agree. Delaware v. Prouse, supra, at 654-655. It is likewise beyond dispute that Maples’ action in shining his flashlight to illuminate the interior of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee, 274 U. S. 559, 563 (1927): “[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection. Likewise, the fact that Maples “changed [his] position” and “bent down at an angle so [he] could see what was inside” Brown’s car, App. 16, is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown’s automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy, Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U. S. 735, 739-745 (1979), shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or" } ]

[ { "docid": "17622759", "title": "", "text": "1176 (10th Cir.2005). Fourth amendment reasonableness is reviewed de novo. Id. The district court did not err in denying the motion to suppress. Tribal criminal jurisdiction may extend to both member and non-member Indians. 25 U.S.C. § 1301(2); United States v. Lara, 541 U.S. 193, 209, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). It does not extend to non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). That said, tribal officers do have the authority to investigate violations of law on tribal land, and detain persons, including non-Indians, suspected of violating the law. Duro v. Reina, 495 U.S. 676, 696-97, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990) (“Tribal law enforcement authorities have the power to restrain those who disturb public order on the reservation, and if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.”); United States v. Terry, 400 F.3d 575, 579-80 (8th Cir.2005). Moreover, tribal authorities may investigate unauthorized possession of firearms on gaming premises which is proscribed by tribal law. See Muscogee (Creek) Nation Code Ann., tit. 21., § 5-U6(C). An officer may seize evidence of a crime if it is in plain view, its incriminating character is immediately apparent, and the officer has a lawful right of access to the item. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The security guard certainly could investigate whether Mr. Green’s vehicle was in fact stolen. We have suggested that incriminating evidence that may be seen through the window of a vehicle may be in plain view. United States v. Sparks, 291 F.3d 683, 692 (10th Cir.2002). This view may be assisted by a flashlight without any infringement of Fourth Amendment rights. Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion); United States v. Ortiz, 63 F.3d 952, 954 (10th Cir.1995). Having personally observed the gun and knowing Mr. Green’s background as a felon," }, { "docid": "3348952", "title": "", "text": "conduct in this case did not amount to a Fourth Amendment violation. Under the plain view doctrine, a police officer’s warrantless seizure does not violate the Fourth Amendment if the officer’s conduct satisfies three criteria. United States v. Hatten, 68 F.3d 257, 260 (8th Cir.1995), cert. denied, 516 U.S. 1150, 116 S.Ct. 1026, 134 L.Ed.2d 105 (1996). First, the officer must not violate the Fourth Amendment in arriving at the vantage point from which he plainly views the evidence. Id. Second, the object’s incriminating nature must be immediately apparent to the officer. Id. Third, the officer must have a legal right of access to the object. Id. We find each of these criteria satisfied in this case. Beatty argues that after he and his passenger exited the truck, Deputy Coop was not justified in reapproaching the vehicle and looking inside. According to Beatty, Deputy Coop’s return to the side of the vehicle was improper because it was not supported by a reasonable, articulable suspicion. We reject this argument. In order to look inside the truck, Deputy Coop did not need “probable cause, or even reasonable suspicion that crime [was] afoot.” Id. At the time Deputy Coop observed the holster strap in the ear, all'that was required was that he “‘had a right to be in close proximity to the [truck] at a point from which the observation occurred.’ ” Id. (quoting United States v. Webb, 533 F.2d 391, 394 (8th Cir.1976)). When Deputy Coop looked inside Beatty’s truck, he had already lawfully stopped the vehicle on a public road. He did not physically place himself or his flashlight inside the truck’s cab. Thus, when Deputy Coop first observed the holster strap, he did so from a perfectly legal and legitimate vantage point. See id. at 261 (finding no reasonable expectation of privacy in the visible interior of a car, even when illuminated by a flashlight). As to the incriminating nature of the holster strap, Deputy Coop had approximately 12 years of law enforcement experience at the time of the stop, and he testified that when he saw the strap protruding" }, { "docid": "21404390", "title": "", "text": "that a request to “look in” or “look through” a vehicle is the equivalent of a request to “search” the vehicle. We take this opportunity to establish a similar rule for our own circuit: it is not necessary for an officer specifically to use the term “search” when he requests consent from an individual to search a vehicle. We hold that any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes. Thus, in the light of the factual circumstances in this case, we hold that Trooper Crais’s request to “have a look in” Rich’s truck effectively communicated to Rich that Crais was asking for his consent to search the vehicle. Rich had observed Crais shining his flashlight not only into the tinted window but into the open driver’s side window of the truck and studying the truck’s interior for at least thirty seconds; thus Crais had already “seen inside” the truck and an objectively reasonable person would assume at this point that Crais was requesting permission to look further. Rich further argues that the facts in the instant case are inapposite to those presented in Jimeno, because there the officer expressly informed the defendant that he wanted to search the car for drugs. Jimeno reaffirmed the notion that “[t]he scope of a search is generally defined by its expressed object.” Jimeno, — U.S. at —, 111 S.Ct. at 1804 (citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). Here, Rich asserts, the general request to search his truck was unaccompanied by an express declaration of the item or items that were being sought; thus, it was not objectively reasonable for the officer to assume that Rich had consented to the search of his luggage. In other words, Rich argues that because he did not know that the officer was searching for drugs, his general consent to search the vehicle could not be interpreted as extending to any “containers within" }, { "docid": "23628061", "title": "", "text": "to suppress, and we affirmed, reasoning that “the absence of weapons on the [defendant], and the fact that there was no further aggressive behavior did not, as a matter of law, make continuing apprehension of danger unreasonable.” Id. at 668. We disagreed with the Defendant’s argument that it was unreasonable to search the locked glove compartment, noting that once the occupants returned to the car, “it would have taken only a few seconds for Holifield or one of his passengers to remove the keys from the ignition and unlock the glove compartment, thus giving them immediate access to the pistol.” ' Id. at 668-69. Finally, we observed that “the Supreme Court has rejected the reasoning that because the occupants have exited the vehicle and are under the control of officers, the officers could not reasonably believe that they could gain immediate control of a weapon located inside the vehicle.” Id. at 669 (citing Long, 463 U.S. at 1051, 103 S.Ct. 3469). This Court applied similar reasoning to uphold a protective search in United States v. Brown, 133 F.3d 993 (7th Cir.1998), cert. denied, — U.S. -, 118 S.Ct. 1824, 140 L.Ed.2d 960 (1998). In Brown, police officers stopped two persons suspected of prowling late at night in a high-crime neighborhood. See id. at 995. After the suspects were removed from their car, an officer scanned the interior of the vehicle with his flashlight and observed a “shiny chrome object” protruding from a black bag and believed it might be a weapon. Id. The officer opened the bag, and found the chrome object to be a .44 Magnum with a scope attached to the top. The Defendant was indicted and moved to exclude from evidence his possession of the .44 Magnum. See id. at 994-95. The district court admitted the evidence and the Defendant was convicted of three federal offenses relating to his possession of firearms. The Defendant appealed alleging that the search of the bag and seizure of the gun were unconstitutional. See id. We affirmed, holding that the defendant “was not so far from the car that he could" }, { "docid": "23523166", "title": "", "text": "Colon advised him that they had already found a gun in the Expedition, and “handed [appellant] off’ to Coyne. In his affidavit, Officer Coyne explained that at this point he assumed, based on his training and experience, that Sergeant Colon wanted to separate the two suspects while he continued to investigate the gun. Officer Coyne did not realize that appellant had already been placed under arrest but had not been given his Miranda warnings. Officer Coyne walked appellant over to his police cruiser and pat-frisked him again, finding a single Mercedes Benz key (which Allen said belonged to his aunt) and some cash in his front pockets, both of which he returned to Allen. After placing Allen in the rear of the cruiser, Officer Coyne asked him whether there was anything illegal in the Mercedes, stating that if there were, Allen’s aunt would be charged with it. Appellant replied “whatever you find, charge me with it.” According to his affidavit, Officer Coyne then asked appellant for the key to the Mercedes, but appellant denied having it. Officer Coyne instructed appellant to get out of the cruiser. He then discovered that the key was no longer in the pocket where he had found it just moments before. After unsuccessfully searching the rear compartment of the cruiser and the area outside the vehicle for the key, Officer Coyne told Allen that, if need be, he would break the window to get into the Mercedes. Appellant sat down on the sidewalk and retrieved the key from his sock. Once Allen was returned to the rear of the cruiser, Officer Coyne walked up to the Mercedes. In his affidavit, Officer Coyne averred that, once he had reached the Mercedes, he began to look inside, shining his flashlight to illuminate the vehicle’s interior. Officer Coyne explained that he began his inspection by looking through the rear window and then proceeded to the windows on the driver’s side as he walked around the side of the car along the curb. According to his sworn testimony, when Officer Coyne reached the corner of the front windshield, he" }, { "docid": "23523167", "title": "", "text": "it. Officer Coyne instructed appellant to get out of the cruiser. He then discovered that the key was no longer in the pocket where he had found it just moments before. After unsuccessfully searching the rear compartment of the cruiser and the area outside the vehicle for the key, Officer Coyne told Allen that, if need be, he would break the window to get into the Mercedes. Appellant sat down on the sidewalk and retrieved the key from his sock. Once Allen was returned to the rear of the cruiser, Officer Coyne walked up to the Mercedes. In his affidavit, Officer Coyne averred that, once he had reached the Mercedes, he began to look inside, shining his flashlight to illuminate the vehicle’s interior. Officer Coyne explained that he began his inspection by looking through the rear window and then proceeded to the windows on the driver’s side as he walked around the side of the car along the curb. According to his sworn testimony, when Officer Coyne reached the corner of the front windshield, he leaned over the fender and the hood of the vehicle, with both feet planted on the ground, and shone his flashlight into the driver’s side area. He specifically denied having to walk or sit on the hood to look inside of the car, although he admitted that he may have made some incidental contact with the fender and the windshield as he moved around the vehicle. As we discuss further infra, in the memorandum of law accompanying his motion to suppress, Allen presented a different account of this incident. Allen claimed that, “according to the reports provided in discovery, Officer Coyne then began to attempt to examine the interior of the locked Mercedes. Unable to see anything incriminating in the interior ..., he positioned himself on top of the hood of the Mercedes, and shined his flashlight into the vehicle’s interior.” The memorandum contained no record citations for this version of events, and Allen’s affidavit did not mention Officer Coyne’s physical location when he saw the weapon. Officer Coyne’s affidavit recounted how, once he shone" }, { "docid": "13087858", "title": "", "text": "v. Wright, supra, (flashlight used to peer through a 9-inch gap in garage doors); United States v. Copien, supra, (flashlight used to illuminate interior of an aircraft); United States v. Hernandez, 715 F.2d 548, 550 (11th Cir.1983) (per curiam), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984) (spotlight used to illuminate boat deck during nighttime). A decision of the U.S. Supreme Court also approved the use of lights to illuminate the deck of a boat in nighttime. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed.2d 1202 (1927). Lee was decided several years before Katz, and thus did not rely on the expectation of privacy test. However, Lee was cited in Katz for the proposition that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” We have no doubt that Head intended to gain some measure of privacy by applying an artificial surface to the windows which made viewing from its exterior difficult. Although he might have prevent ed all viewing by the installation of curtains, or other materials, he chose not to do so and thereby risked his privacy. He knew, or must have known, that the contents of the van were to some extent exposed to view and he accepted that risk. In reaching our conclusion, we are mindful that the nature of a privacy interest in some areas of a vehicle operated on a public highway is necessarily diminished. Vehicles are pervasively regulated and subject to appropriate safety inspections. They may be stopped for purposes related to safety and given limited inspections consistent with that purpose, for reasons falling short of probable cause. California v. Carney, 105 S.Ct. at 2069-70. Under such circumstances, there are “reduced expectations of privacy,” id., at least in the open interior areas of a vehicle which are not customarily used for sleeping purposes. All of these factors cause us to reject Head’s contention that the viewing of the interior of his van was itself an unconstitutional search. Although the viewing itself" }, { "docid": "23523168", "title": "", "text": "leaned over the fender and the hood of the vehicle, with both feet planted on the ground, and shone his flashlight into the driver’s side area. He specifically denied having to walk or sit on the hood to look inside of the car, although he admitted that he may have made some incidental contact with the fender and the windshield as he moved around the vehicle. As we discuss further infra, in the memorandum of law accompanying his motion to suppress, Allen presented a different account of this incident. Allen claimed that, “according to the reports provided in discovery, Officer Coyne then began to attempt to examine the interior of the locked Mercedes. Unable to see anything incriminating in the interior ..., he positioned himself on top of the hood of the Mercedes, and shined his flashlight into the vehicle’s interior.” The memorandum contained no record citations for this version of events, and Allen’s affidavit did not mention Officer Coyne’s physical location when he saw the weapon. Officer Coyne’s affidavit recounted how, once he shone his flashlight into the vehicle from the vantage point he had described (i.e., leaning over the fender and the hood), he was able to see the top of a chrome-colored gun. He immediately notified Sergeant Colon, who walked over to the vehicle, took the key from Coyne, and opened up the driver’s side door to confirm that the object was indeed a gun. Officer Coyne approached appellant and demanded his license to carry a firearm, which appellant stated he did not have. According to the officer’s affidavit, Coyne then removed Allen from the cruiser, placed him in handcuffs, informed him of his Miranda rights, and took him to the police station for booking. Officer Coyne’s affidavit further states that, after they arrived at the station, and appellant had been informed of his Miranda rights for a second time, appellant stated that the “peashooter” was his and that the police “should just slap me off the head with the gun and send me home.” Appellant also said that there were “no bullets in the tube but" }, { "docid": "22930184", "title": "", "text": "action for false arrest.\" Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir.1990). . We observe that Roy may have had reasonable suspicion under Terry to investigate the vehicle and its occupants because he thought that the vehicle resembled one that he had seen earlier that evening in the vicinity of cultivated marijuana fields that he was watching. In addition to his probable cause for stopping the vehicle for speeding, Roy noticed that the vehicle did not pull over to the roadside when he activated his siren and flashing blue light. The latter fact could have caused Roy to believe that the vehicle that he was following was fleeing. See United States v. Hosch, 577 F.2d 963, 965 (5th Cir.1978) (\"While it may be commonplace for vehicles to drive in excess of normal speed limits in sparsely populated areas, we think that the officers were entitled to draw the rational inference of flight from the actions of appellant’s vehicle in this case.”). The possibility of flight, in addition to Roy’s reasonable suspicion that the vehicle and its occupants might be related to the marijuana field and, thus, implicated in a drug offense, may have increased Roy’s reasonable suspicion and incentive to ascertain whether the occupants were involved in marijuana cultivation. This suspicion was consistent with his flashlight search of the vehicle while the highway patrolman guarded Courson and her companions. The Supreme Court has held that an officer violates no Fourth Amendment right by shining a flashlight into a car because no legitimate expectation of privacy exists in a vehicle interior, which may be viewed by passersby or police officers. Texas v. Brown, 460 U.S. 730, 740-41, 103 S.Ct. 1535, 1542-43, 75 L.Ed.2d 502 (1983) (plurality opinion). We also note that even a search of the vehicle would have been valid because the Supreme Court has held that an investigative Terry stop can extend to the passenger compartment of an automobile in the absence of probable cause to arrest. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983); United States v. Aldridge, 719 F.2d" }, { "docid": "3348945", "title": "", "text": "Beatty if he carried insurance on the vehicle, and Beatty responded that he did not. See id. § 27-22-104 (making it unlawful to operate an uninsured motor vehicle in Arkansas). Shortly thereafter, backup officers arrived at the scene. At about this time, Deputy Coop asked Beatty for permission to look inside the truck. Beatty consented. Deputy Coop approached the truck and noticed that it did not have an inspection sticker as required by state law. See id. § 27-32-112(d). Without physically extending himself or his flashlight into the truck’s interior, Deputy Coop shined his flashlight through the open driver’s side window and noticed, in plain view, a leather strap protruding from a briefcase positioned adjacent to the driver’s seat. Deputy Coop recognized this strap as being part of a shoulder holster for a handgun. He then opened the truck door and removed the holster which held a .45 caliber handgun with a fully loaded clip. He also discovered bags of amphetamine inside the brief case. A subsequent gun check indicated that the gun had been stolen. After discovering the drugs, Deputy Coop alerted the Drug Task Force. An inventory search of the vehicle resulted in the seizure of marijuana, jewelry, $2,740 in cash, and syringes, one of which appeared to be filled with a controlled substance. A federal grand jury charged Beatty with (1) knowingly possessing with the intent to distribute amphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1); (2) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (3) knowingly carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(e)(1). Beatty originally pleaded not guilty to each count and filed a motion to suppress all items seized from him and the truck at the time of the stop. The magistrate judge recommended denial of Beatty’s motion. According to the magistrate judge, the plain view doctrine justified Deputy Coop’s discovery of the holster strap, and after observing the holster strap, Deputy Coop was justified in conducting a limited protective sweep of the vehicle." }, { "docid": "13745068", "title": "", "text": "the district court declined to resolve this issue, and we cannot find facts, we therefore cannot validate the search of the truck under this rationale. 2. Officer safety The government also argues that the search of Mr. Dennison’s cab was valid because of officer safety concerns and the exigencies in whieh the search occurred. Specifically, we analyze whether officers were justified to perform a protective sweep of Mr. Dennison’s passenger compartment. a. Applicable Law Officers can conduct a protective search of a vehicle’s passenger compartment for weapons during an investigative detention when officers have a reasonable belief that a suspect poses a danger. In Michigan v. Long, 463 U.S. 1032, 1036, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), officers stopped to investigate a car that had swerved erratically into a ditch. The vehicle’s only occupant met the officers near the rear of the car and, after a repeated request, produced his license. The driver did not respond to a repeated request for the vehicle registration, and the officers testified that the driver appeared to be under the influence of something. When the driver began walking back toward the open door of his car, officers followed and observed a hunting knife inside the car. Officers then conducted a Terry protective pat-down, revealing no weapons. Another officer shined a flashlight into the vehicle’s interior to search for additional weapons, leading to a drug discovery. The Supreme Court validated the protective search of the driver’s passenger compartment under the principles articulated in Terry: [T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Id. at 1049, 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). More generally, courts have noted the potential dangers of vehicle stops. This court recognized that [a]n officer" }, { "docid": "16769595", "title": "", "text": "144 F.3d 632, 639-40 (10th Cir.1998) (although an individual may expect his personal luggage to be subject to certain contact by other passengers, he has a reasonable expectation that it will not be manipulated in such a manner as to reveal its contents and therefore officers' touching, pressing and manipulating of defendant's luggage in such a way as to determine if hard bundles were inside was a search). If there is a reasonable expectation of privacy in the contents of a spare tire, is an \"echo test” nevertheless so minimally intrusive, and the information gleaned therefrom so limited, as to not rise to the level of a search? See, e.g., United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (finding dog sniff of luggage not a search due to its minimal intrusiveness and the limited information obtained therefrom). We need not decide this issue, however, because the scope of Lyons' consent extended to Ranieri performing the \"echo test.” . Ranieri could have simply hit the spare tire and listened to the resulting sound without the stethoscope. We do not consider the use of a stethoscope significant under the circumstances. Use of such sense-enhancing devices by police officers generally does not affect the Fourth Amendment analysis. Compare Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (police officer’s use of flashlight to illuminate interior of car and shifting of his position to obtain a better view of car’s interior not a search) and Rascon-Ortiz, 994 F.2d at 755 (brief visual inspection of undercarriage of vehicle with flashlight and mirror not a search) with Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (\"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a search&emdash;at least where ... the technology in question is not in general public use.”) (quotations and citation omitted). The stethoscope merely enhanced sounds Ranieri could have heard (like Brown and" }, { "docid": "13745069", "title": "", "text": "under the influence of something. When the driver began walking back toward the open door of his car, officers followed and observed a hunting knife inside the car. Officers then conducted a Terry protective pat-down, revealing no weapons. Another officer shined a flashlight into the vehicle’s interior to search for additional weapons, leading to a drug discovery. The Supreme Court validated the protective search of the driver’s passenger compartment under the principles articulated in Terry: [T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Id. at 1049, 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). More generally, courts have noted the potential dangers of vehicle stops. This court recognized that [a]n officer in today’s reality has an objective, reasonable basis to fear for his or her life every time a motorist is stopped. Every traffic stop, after all, is a confrontation. The motorist must suspend his or her plans and anticipates receiving a fine or perhaps even a jail term. That expectation becomes even more real when the motorist or a passenger knows there are outstanding arrest warrants or current criminal activity that may be discovered during the course of the stop. United States v. Holt, 264 F.3d 1215, 1223 (10th Cir.2001) (en banc). Furthermore, “the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.” Maryland v. Wilson, 519 U.S. 408, 413, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Officer safety is “both legitimate and weighty,” Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and the Supreme Court has identified contexts “where the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie, 494" }, { "docid": "22448802", "title": "", "text": "519 U.S. at 415, 117 S.Ct. 882; order the passengers to remain in the vehicle, Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C.Cir.1998); open the door of a vehicle with darkly tinted windows to check for weapons, Stanfield, 109 F.3d at 981; order the occupants to raise their hands during the stop, United States v. Moorefield, 111 F.3d 10, 13 (3d Cir.1997); and use a flashlight to check the dark interior of a car, Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion). In addition to information about loaded weapons that the officer may obtain from visually looking in the car, shining a light around the interior of the car, or asking the motorist and occupants to step out of the car or to keep their hands raised' — -all procedures authorized by the courts in the name of officer safety — an officer may also obtain information about the existence of a loaded weapon by simply asking the motorist if there is a loaded weapon in the vehicle. Indeed, straightforwardly asking this question is often less intrusive than many of the procedures authorized by our sister circuits. If a motorist volunteers that there is a loaded weapon in the car, that will undeni ably be an important piece of information causing the officer to proceed with greater caution. It was suggested during oral argument in the en banc rehearing that a motorist with a loaded gun is unlikely to admit that fact. The facts of this case somewhat belie that argument. Here, w'hen asked that question, Holt freely admitted the presence of a loaded gun. Other cases present similar situations in which defendants either volunteered or truthfully responded that they possessed weapons. See, e.g., United States v. Cain, 155 F.3d 840, 842 (7th Cir.1998); United States v. Patterson, 140 F.3d 767, 771 (8th Cir.1998); United States v. Maza, 93 F.3d 1390, 1395 (8th Cir.1996); United States v. Castellano, 500 F.2d 325, 326 (5th Cir.1974) (en banc); Burris v. State, 330 Ark. 66, 954 S.W.2d 209, 211 (1997); State v. Hill," }, { "docid": "15014972", "title": "", "text": "located within the car (to seize the marijuana) when he noticed the handgun sticking out from under the driver's seat. This plain view made the seizure of the handgun lawful. . It is unclear whether Appellant includes in his challenge to the validity of the plain view search the argument that during the search . he was outside his vehicle and being detained in Officer Kula's car. However, this argument too would be unavailing as this Court has ruled previously that a plain view search during a protective detention does not violate the Fourth Amendment. In United States v. Weatherspoon, 82 F.3d 697 (6th Cir.1996), on facts very similar to the present case, we held that a police officer could peer inside a vehicle if it were possible for a member of the general public to do the same, regardless of whether the defendant was inside or outside the car. In Weatherspoon, an officer defendant stopped the defendant for having a faulty tail light and thereupon asked the defendant to exit his vehicle and step over to his squad car. During this brief detention where the defendant was outside his car, the officer, using a flashlight, saw the barrel of a gun sticking out from under the driver’s seat, and the defendant was arrested. 82 F.3d at 699. This Court concluded that if an officer legitimately saw the barrel of a gun sticking out from under the seat of a lawfully stopped vehicle, he could seize the gun without a warrant. Id. The fact that the defendant was outside his vehicle was not relevant to the Court's inquiry. Id. at 699-700. . Appellant argues that factual distinctions undermine the relevance of this case. He contends that he did not fail to provide identification, and that Thompson therefore is not instructive here. However, Appellant's driving a vehicle with an altered drive-out tag clearly does raise an issue of insufficient-indeed fraudulent— identification. Moreover, Appellant's exiting his vehicle and approaching Officer Kula in a \"nervous” and \"jittery\" manner certainly provides a further basis for detention— i.e., safety concerns. . Appellant believes that this" }, { "docid": "3348944", "title": "", "text": "HANSEN, Circuit Judge. Danny Lee Beatty appeals from a final judgment entered by the district court following his conditional pleas of guilty to one count of drug trafficking, and one count of knowingly carrying a firearm during a drug trafficking crime. We affirm. I. The facts are largely uncontroverted. Beatty disputes the legal ramifications arising from the facts. While patrolling Hot Springs Village, Arkansas, during the late evening of March 6, 1997, Deputy Gary Coop observed a pickup truck without a working license plate illumination light as required by Arkansas law. See Ark.Code Ann. § 27-36-215(c) (Michie 1994). Deputy Coop turned and followed the truck, and after observing it cross the center line, he activated his patrol car’s emergency lights and stopped the pickup. Two persons were riding in the truck — a driver, later identified to be Danny Lee Beatty, and a minor female passenger. Deputy Coop requested Beatty’s driver’s license and asked both Beatty and the minor female to exit the vehicle while he ran a license check on Beatty. Deputy Coop asked Beatty if he carried insurance on the vehicle, and Beatty responded that he did not. See id. § 27-22-104 (making it unlawful to operate an uninsured motor vehicle in Arkansas). Shortly thereafter, backup officers arrived at the scene. At about this time, Deputy Coop asked Beatty for permission to look inside the truck. Beatty consented. Deputy Coop approached the truck and noticed that it did not have an inspection sticker as required by state law. See id. § 27-32-112(d). Without physically extending himself or his flashlight into the truck’s interior, Deputy Coop shined his flashlight through the open driver’s side window and noticed, in plain view, a leather strap protruding from a briefcase positioned adjacent to the driver’s seat. Deputy Coop recognized this strap as being part of a shoulder holster for a handgun. He then opened the truck door and removed the holster which held a .45 caliber handgun with a fully loaded clip. He also discovered bags of amphetamine inside the brief case. A subsequent gun check indicated that the gun had been" }, { "docid": "23061486", "title": "", "text": "interior of the vehicle. A canine “sniff’ test is not a “search” for Fourth Amendment purposes and is exempt from the probable cause requirement so long as the dog does not enter the home or vehicle. See Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Here, Bruno did not merely sniff the vehicle’s exterior, he actually entered the vehicle and alerted on the back seat. In the presence of probable cause, this action was constitutionally permissible. Furthermore, because law enforcement had probable cause to conduct a search of the vehicle, moving the car to a safer location — the Midland Police station — did not undermine the constitutionality of the search. See United States v. Estrada, 459 F.3d 627, 634 n. 7 (5th Cir.2006) (collecting sources). In the presence of probable cause, “given the scope of the initial intrusion caused by seizure of an automobile, there is no constitutional difference between the proper search on [a] highway and [a] later search at [a police] station.” United States v. Banuelos-Romero, 597 F.3d 763, 768 (5th Cir.2010). Here, moving the vehicle was supported by probable cause stemming from Bracy’s tip and does not constitute grounds for sup pressing the drug and U.S. currency evidence. Lastly, the existence of probable cause to believe the vehicle contained crack cocaine permitted the officers to remove a piece of the dashboard during the continuation of the search at the police station. In United States v. Zucco, 71 F.3d 188, 191-92 (5th Cir.1995), we determined that “every part of a vehicle which may conceal the object of the search may be searched” when the search is supported by probable cause. In Zueco, law enforcement officers had probable cause that the vehicle contained drugs and moved the vehicle to a police station for inspection. The search included “dismantling a wall of a vehicle” to determine whether drugs were hidden in the interior. Id. at 191. Here, the officers removed a button from the dashboard. With use of a flashlight, the officers could see packaged crack cocaine and U.S. currency hidden behind the dash." }, { "docid": "17622760", "title": "", "text": "(8th Cir.2005). Moreover, tribal authorities may investigate unauthorized possession of firearms on gaming premises which is proscribed by tribal law. See Muscogee (Creek) Nation Code Ann., tit. 21., § 5-U6(C). An officer may seize evidence of a crime if it is in plain view, its incriminating character is immediately apparent, and the officer has a lawful right of access to the item. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The security guard certainly could investigate whether Mr. Green’s vehicle was in fact stolen. We have suggested that incriminating evidence that may be seen through the window of a vehicle may be in plain view. United States v. Sparks, 291 F.3d 683, 692 (10th Cir.2002). This view may be assisted by a flashlight without any infringement of Fourth Amendment rights. Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion); United States v. Ortiz, 63 F.3d 952, 954 (10th Cir.1995). Having personally observed the gun and knowing Mr. Green’s background as a felon, we have no doubt that the cross-deputized officer had probable cause to conclude that the gun was evidence of a crime. Thus, no warrant was required for law enforcement to seize the gun. See Soldal v. Cook County, Ill, 506 U.S. 56, 68, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (seizure of property in plain view without a warrant is authorized only when probable cause exists to associate property with criminal activity); Sparks, 291 F.3d at 690-91; United States v. Hatten, 68 F.3d 257, 261 (8th Cir.1995). Given our holding, it is unnecessary to address whether Mr. Green abandoned the vehicle thereby justifying the inventory search and whether Mr. Green gave implied consent to search his vehicle by entering the casino property. AFFIRMED. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3." }, { "docid": "21404389", "title": "", "text": "the instant case, it was similarly reasonable for Trooper Crais to conclude that an affirmative response to his request to “look in” Rich’s pickup included consent to “look in” closed containers found inside the truck. Rich first argues that Trooper Crais’s request to “have a look in” the truck was— under the objectively reasonable standard— only a request to “see inside” the vehicle. Rich argues that this interpretation is strengthened by the fact that Crais had previously attempted to “see inside” but was foiled by the truck’s tinted window. Somewhat similarly, the district court based its decision to suppress the evidence in part on the failure of the officer to use the more precise term “search” in his request. We decline the defendant’s invitation to establish a list of specific terms from which an officer must select the most appropriate for each individual situation and/or defendant. To so hamper law enforcement officials in their everyday duties would be an unjustifiable extension of the Fourth Amendment’s requirement that searches be “reasonable.” Several other circuits have held that a request to “look in” or “look through” a vehicle is the equivalent of a request to “search” the vehicle. We take this opportunity to establish a similar rule for our own circuit: it is not necessary for an officer specifically to use the term “search” when he requests consent from an individual to search a vehicle. We hold that any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes. Thus, in the light of the factual circumstances in this case, we hold that Trooper Crais’s request to “have a look in” Rich’s truck effectively communicated to Rich that Crais was asking for his consent to search the vehicle. Rich had observed Crais shining his flashlight not only into the tinted window but into the open driver’s side window of the truck and studying the truck’s interior for at least thirty seconds; thus Crais had already “seen inside” the" }, { "docid": "22834834", "title": "", "text": "frisk of a person to a limited search of an automobile’s interior. Similar to the facts here, the officers in Long discovered marijuana in the passenger compartment with the aid of a flashlight after stopping the driver for a traffic violation. Recognizing that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers,” 463 U.S. at 1047, 103 S.Ct. at 3480, the Court held that once reasonable suspicion is established, a limited search of an automobile’s interior is permissible. This limited search is no less permissible where, as here, the occupants have been removed from the automobile before the search is made. See 463 U.S. at 1052, 103 S.Ct. at 3482 (“the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons”). Officer Bernal’s action of looking into the passenger compartment of the Volkswagen with a flashlight did not exceed the limitations of a Terry search. As we apply an objective standard of reasonableness to this determination, our conclusion is not changed by Bernal’s testimony that he had no subjective fear that either Cummins or Akins were armed. We therefore hold that the marijuana discovered by Officer Bernal in the passenger compartment of the Volkswagen was not subject to suppression under the exclusionary rule. D. Defendants’ next argument that the search of the remainder of the car was without probable cause requires little discussion. Upon discovering the marijuana, Officer Bernal had probable cause to place defendants Cummins and Akins under arrest. The search of the Volkswagen which followed was permissible both as a search incident to arrest, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and as an inventory search, Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Because no Fourth Amendment violation occurred, the motion to suppress the evidence found during the search was properly denied. III. Akins challenges the seizure of evidence in connection with his January 26, 1989 arrest. He claims that the inventory search of his car in which the" } ]

[ { "docid": "22666880", "title": "", "text": "that “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Doe, 58 F.3d at 497. In this case, the magistrate judge granted leave to amend once, but denied leave to amend further because Lopez had not shown good cause for additional amendments. The district court then dismissed two of Lopez’s claims — that he was intentionally placed in a cell with a violent prisoner and was mistreated during a prison transfer — because Lopez had named the wrong defendants. However, neither the magistrate judge nor the district court found that the pleading could not be cured by the allegation of other facts. To the contrary, the magistrate judge acknowledged that Lopez could cure the deficiencies in his complaint by naming the correct defendants. The dismissal without leave to amend was therefore contrary to our longstanding rule that “[ljeave to amend should be granted ‘if it appears at all possible that the plaintiff can correct the defect.’ ” Balistreri, 901 F.2d at 701 (quoting Breier v. Northern California Bowling Proprietors’ Ass’n, 316 F.2d 787, 790 (9th Cir.1963)). The district court’s action was also inconsistent with our precedent because Lopez was a pro se plaintiff. We have noted frequently that the “rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.” Noll, 809 F.2d at 1448. Because the district court failed to grant Lopez leave to amend, we reverse the dismissal and remand to the district court with instructions that Lopez be given an opportunity to amend his complaint. B. Summary Judgment We review de novo a grant of summary judgment and must determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the" } ]

[ { "docid": "6212187", "title": "", "text": "must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir.2008). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). DISCUSSION 1. Judicial Notice Defendants ask the Court to take judicial notice of the following documents related to the mortgage agreement at issue in this case: (1) the deed of trust, (2) the notice of default, (3) the notice of trustee’s sale, see MERS Request, exs. A-C, (4) the promissory note, and (5) the workout agreement, see Aurora Request, exs. 1, 3. Aurora also asks the Court to take judicial notice of Lehman Brothers Bank’s federal stock charter. See Aurora Request, ex. 4. Finally, MERS requests that the Court take judicial notice of complaints filed in state court. See MERS Request, exs. D, E, F. Plaintiffs do not object to these requests. The Court finds that these documents are suitable matter for judicial notice and GRANTS defendants’ request pursuant to Federal Rule of Evidence 201. 2. Federal Preemption Aurora Bank is a federally chartered savings bank; Aurora Loan Services, Inc., is its wholly owned subsidiary. See Aurora Request, exs. 4, 5. Aurora argues that plaintiffs’ claims for violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq. (claims 1 and 7), fraud (claims 2 and 6) and conversion (claim 4) are preempted by the Home Owners’ Loan Act (“HOLA”), 12 U.S.C. § 1461 et seq., and the" }, { "docid": "6212186", "title": "", "text": "et seq. Aurora invoked federal question jurisdiction and removed to this Court on April 8, 2009. Now before the Court are motions to dismiss filed by Aurora and Mortgage Electronic Registration Systems (“MERS”). LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). While courts do not require “heightened fact pleading of specifics,” id., a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,” id. at 1965. Plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Id. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir.2008). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). DISCUSSION 1. Judicial Notice Defendants ask the Court to take judicial notice of the following documents related to the mortgage agreement at issue in this case: (1) the deed of trust, (2) the notice of default, (3)" }, { "docid": "8677616", "title": "", "text": "its face.’ ” (citation omitted)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In the context of ruling on both a Rule 12(b)(6) and Rule 12(c), motion, the Court is generally limited to the contents of the complaint. However, in addition, the Court may consider “documents referenced extensively in the complaint, documents that form the basis of plaintiffs claims, and matters of judicial notice when determining whether the allegations of the complaint state a claim upon which relief can be granted.” Mendelsohn v. Intalco Aluminum Corp., No. C06-0190RSL, 2006 WL 1148559, at *1 (W.D.Wash. Apr. 21, 2006); see also United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir.2003). Where a court grants a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c), leave to amend should be freely given if it is possible that further factual allegations will cure any defect. See Somers v. Apple, Inc., 729 F.3d 953, 960 (9th Cir.2013) (“[A] district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factional allegations.... ”). B. Plaintiffs Have Failed to State a Claim for a Violation of Title IX, But Will Be Granted Leave to Amend Defendants raise a number of challenges to Plaintiffs’ Title IX claim. First, they argue that Plaintiffs cannot, under California’s survival statute (Cal. Code Civ. Proc. § 377.34), state a claim under Title IX to the extent they seek emotional damages (pain, suffering, and the like). Dkt. No. 27, at 4. Second, they argue that Plaintiffs lack standing to assert the Title IX" }, { "docid": "21673029", "title": "", "text": "causes of action. A Under FRCP 12(b)(6), dismissal is proper if the complaint fails “to state a claim upon which relief can be granted.” The court must accept the factual allegations as true and construe them in the light most favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). Although a plaintiff is not held to a “heightened pleading standard,” the plaintiff must provide more than mere “eonclu-sory allegations.” Swierkiewicz v. Sorema NA, 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (rejecting heightened pleading standards); Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir.2002) (rejecting conclusory allegations). A motion to dismiss must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir1990). The court may consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading,” whether such documents are provided by a plaintiff or a defendant. See Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir.2000) (internal quotation omitted). “[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000). The district court has broad discretion, however, to deny leave to amend after the first amendment of the complaint. See Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1111 (9th Cir.2003). B 1 Counterdefendants move to dismiss the RICO claims, which constitute the first through third causes of action. A plaintiff has a private right of action under RICO for injuries" }, { "docid": "7294564", "title": "", "text": "dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In answering this question, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). DISCUSSION I. Demand futility Nominal-defendant Openwave moves the Court to dismiss this action for plaintiffs’ failure to make a pre-suit litigation demand. Plaintiffs respond that they have sufficiently pled demand futility under Delaware law. Federal Rule of Civil Procedure 23.1 provides, in pertinent part, that in a derivative action brought by shareholders, the complaint must “allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiffs failure to obtain the action or for not making the effort.” According to the Ninth Circuit, pursuant to Rule 23.1: A shareholder seeking to vindicate the interests of a corporation through a derivative suit must first demand action from the corporation’s directors or plead" }, { "docid": "15374434", "title": "", "text": "their First Amended Complaint (“FAC”). LEGAL STANDARD I. Failure to state a claim upon which relief can be granted Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In answering this question, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). II. Subject matter jurisdiction Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge the jurisdiction over the subject matter of the complaint. The party invoking the jurisdiction bears the burden of establishing that the Court has the requisite subject matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376-78, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Under this standard, all factual allegations pled by the plaintiff must be accepted as true and" }, { "docid": "13428647", "title": "", "text": "may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001), citations omitted. The Ninth Circuit later gave a separate definition of “the ‘incorporation by reference’ doctrine, which permits us to take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiffs pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005), citations omitted. “[A] court may not look beyond the complaint to a plaintiffs moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss. Facts raised for the first time in opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice.” Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003), citations omitted. If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend. “[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc), quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002). III. Discussion A. Truth In Lending Act In the first two counts, Plaintiffs seeks rescission and monetary damages under TILA and Regulation Z (regulation issued by the Federal Reserve to implement TILA) based on allegations that they did not receive required disclosures. TILA “requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights. Failure to satisfy the Act subjects a lender to criminal penalties for noncompliance, as well as to statutory and actual damages traceable to a lender’s" }, { "docid": "13945789", "title": "", "text": "the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. If the Court concludes that the Complaint should be dismissed, it must then decide whether to grant leave to amend. “[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). III. CONSIDERATION OF MATERIALS BEYOND THE PLEADINGS Before proceeding to the merits of Defendants’ motion, the Court must first determine what materials outside the pleadings it may consider in ruling on the motion. Defendants have requested judicial notice of several documents relating to the corporate status and regulation of the banks involved in this action. Additionally, Plaintiff and Defendants previously submitted declarations and other materials beyond the pleadings in connection with the motions for a temporary restraining order and preliminary injunction that Plaintiff brought earlier in this case. As a general rule, a district court may not consider any material beyond the pleadings in ruling on a 12(b)(6) motion to dismiss for failure to state a claim. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). Rule 12(d) provides that when “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. Pro. 12(d). If a motion to dismiss is converted to summary judgment in this way, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Id. There are, however, two exceptions to the general rule forbidding consideration of extrinsic evidence on a 12(b)(6) motion. Lee, 250 F.3d at 688. First, a court may take judicial notice of matters of public record outside the pleadings. Id. at 689. Second, a court may consider “material which is properly submitted as part of the complaint.” Id. at 688 (internal quotation marks omitted). Such" }, { "docid": "19799648", "title": "", "text": "assert Section 502(a)(2) claims relating to that plan. In summary, we reject Defendants’ arguments that Harris lacks either statutory or constitutional standing. We follow our precedent in Vaughn and hold that a former employee who has voluntarily withdrawn his or her assets from a defined contribution ERISA plan has statutory standing as a “participant” of that plan. That employee has standing to assert claims for breach of fiduciary duty under section 502(a)(2) of ERISA even if claims under Section § 502(a)(1)(B) are also available. We also hold that Section 502(a)(2) claims on a defined contribution plan to recover losses occasioned by a breach of fiduciary duty are redressable and meet the constitutional standing requirements of Article III. Accordingly, we reverse the district court’s dismissal of Harris’s claims on standing grounds. C Both plaintiffs challenge the district court’s decision to deny them leave to amend their Complaint. Plaintiffs seek through amendment to cure any defects in their allegations against the individual defendants, and properly to name the mis identified fiduciaries of the Amgen and Manufacturing Plans. Dismissal without leave to amend is improper unless it is “clear” that “the complaint could not be saved by any amendment.” Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001) (quotation omitted); see also Chappel v. Lab. Corp. of Am., 232 F.3d 719, 726 (9th Cir.2000) (holding that the district court abused its discretion in denying an ERISA plaintiff leave to amend because “amendment would allow [the plaintiff] to state a legally cognizable claim for breach of fiduciary duty”). We agree with Plaintiffs that the district court erred by not granting leave to amend. We do not believe that it can be fairly said that the Complaint cannot be saved by amendment. The district court denied Harris leave to amend because it had determined that Harris lacked standing and thus could not allege a valid claim. Because we have held that Harris has statutory and constitutional standing, we also conclude that Harris should be allowed to amend his claims in the Complaint to challenge the proper defendants and to present any" }, { "docid": "13428646", "title": "", "text": "there is any set of “facts that could be proved consistent with the allegations of the complaint” that would entitle plaintiff to some relief. Swierkiewicz v. Sorema N.A, 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). At the other bound, courts will not assume that plaintiffs “can prove facts which [they have] not alleged, or that the defendants have violated ... laws in ways that have not been alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint. “There are, however, two exceptions----First, a court may consider material which is properly submitted as part of the complaint on a motion to dismiss ... If the documents are not physically attached to the complaint, they may be considered if the documents’ authenticity is not contested and the plaintiffs complaint necessarily relies on them. Second, under Fed.R.Evid. 201, a court may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001), citations omitted. The Ninth Circuit later gave a separate definition of “the ‘incorporation by reference’ doctrine, which permits us to take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiffs pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005), citations omitted. “[A] court may not look beyond the complaint to a plaintiffs moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss. Facts raised for the first time in opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice.” Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003), citations omitted. If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend. “[A] district" }, { "docid": "20153922", "title": "", "text": "must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). While courts do not require “heightened fact pleading of specifics,” id., a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,” id. at 1965. Plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Id. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir.2008). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). DISCUSSION 1. Defendants’ Motions for Sanctions Defendants SCI and Alderwoods seek sanctions against plaintiffs in the form of an award of $35,532.23 in attorneys’ fees. Defendants accuse plaintiffs of engaging in forum shopping by filing them California claims in Prise II and subsequently dismissing that action and refiling Bryant II and Helm in state court. Plaintiffs respond that they proceeded in this manner because they were attempting to have their state claims mirror the federal actions as closely as possible. They point out that they originally sought to have all their claims against all defendants heard in the same case, but they refiled different actions after Judge Conti ruled" }, { "docid": "21239391", "title": "", "text": "only where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir.1996), rev’d on other grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998). A court may, however, consider exhibits submitted with or alleged in the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001). For all of these reasons, it is only under extraordinary circumstances that dismissal is proper under Rule 12(b)(6). United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). As a general rule, leave to amend a complaint which has been dismissed should be freely granted. Fed.R.Civ.P. 15(a). However, leave to amend may be denied when “the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000). III. DISCUSSION The gist of defendants’ attack on the FAC is that it violates Federal Rule of Civil Procedure Rule 8, in that it fails to provide a short and plain statement of plaintiffs claim. Defendants note that plaintiff appears to assert three claims. First, defendants note plaintiffs assertion that defendants fail to provide customers with a schedule of their NSF/OD fees at the time they open their accounts. Defendants argue that to the extent that this claim is made, plaintiff lacks standing because she has admitted that" }, { "docid": "11616130", "title": "", "text": "Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). Defendants seek dismissal of Plaintiffs’ FAC on four grounds: (1) Plaintiffs lack standing to bring their claims under California’s UCL and FAL because they fail to adequately plead actual reliance and injury in fact; (2) Plaintiffs cannot allege false or deceptive advertising as a matter of law because consumers are expected to know that California law requires sales tax to be added to advertised items; (3) Plaintiffs’ claim for restitution under the UCL and FAL fails because Defendants remitted the taxes collected from consumers to the State Board of Equalization; and (4) Plaintiffs’ claim for damages under the CLRA should be dismissed because they fail to allege proper notice of their claim as required by California Civil Code § 1782. These arguments are addressed below. 2. Plaintiffs’ UCL and FAL Claims Section 17200 of the California Business and Professions Code defines “unfair competition” as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the FAL].” Cal. Bus. & Prof. § 17200. By defining unfair competition to include any “unlawful ... business act or practice”, the UCL permits violations of other laws to be treated as unfair competition that are independently actionable. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180, 83 Cal. Rptr.2d 548, 973 P.2d 527 (Cal.1999). As such, any violation of the FAL necessarily violates the UCL.' Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 210," }, { "docid": "22908236", "title": "", "text": "III. DISMISSAL WITH PREJUDICE The plaintiffs argue on appeal that the district court’s dismissal of the complaint with prejudice was improper. We review the district court’s denial of leave to amend for abuse of discretion. United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th Cir.2001). More than six months elapsed between the filing of the original lawsuit and the filing of the consolidated amended complaint. And after defendants filed their motion to dismiss in November 1999, plaintiffs had an additional three months before the district court’s hearing when they could have amended their pleadings to correct the deficiencies in their complaint. Plaintiffs had ample opportunity to amend their complaint before the dismissal. However, as leave to amend is to be freely granted when justice so requires, see Fed.R.Civ.P. 15(a), we do not base our opinion on the failure to amend before the adverse ruling. It is not unreasonable that plaintiffs may seek amendment after an adverse ruling, and in the normal course district courts should freely grant leave to amend when a viable case may be presented. See Fed R. Civ. P. 15(a); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (leave to amend should be granted unless the district court “determines that the pleading could not possibly be cured by the allegation of other facts”). Here, however, as the basic facts are alleged and have been analyzed by the district court and us, we conclude that plaintiffs cannot cure the flaws in their pleading. In the circumstances of a new product and developing market, we do not think it can be fairly alleged that the company knew that patient demand in the future year would not keep pace with, pri- or sales growth. Because any amendment would be futile, there was no need to prolong the litigation by permitting further amendment. See Klamath-Lake Pharmaceutical Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.1983) (futile amendments should not be permitted); Silicon Graphics, 183 F.3d at 991 (denying leave to amend because defects in pleadings could not be cured by amendment). We" }, { "docid": "23450585", "title": "", "text": "678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted); Cafasso, 637 F.3d at 1054 n. 4 (finding Iqbal applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are functionally equivalent). The Court may find a claim plausible when a plaintiff pleads sufficient facts to allow the Court to draw a reasonable inference of misconduct, but the Court is not required “to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and citation omitted). Similarly, we review de novo a district court’s dismissal based on claim preclusion. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002). “Dismissal with prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the complaint could not be saved by amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003) (per curiam). III. Discussion A. Request for Judicial Notice The Retirees request that we take judicial notice of (1) a declaration filed by the County in the REAOC litigation, and (2) five of the MOUs that were attached as exhibits to that declaration. The County has not opposed the request for judicial notice. Under Federal Rule of Evidence 201, “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the court’s territorial jurisdiction; or (2) can be accurately and readily deter mined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. We may take judicial notice of undisputed matters of public record, Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001), including documents on file in federal or state courts. See Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir.2002). Moreover, documents not attached to a complaint may be considered if no party questions their authenticity and the complaint relies on those documents. Lee, 250 F.3d at 688. Therefore, pursuant to Rule 201 and Ninth Circuit authorities, we take judicial notice of these documents that" }, { "docid": "17862323", "title": "", "text": "to amend so that plaintiff may make a further attempt to state a cognizable claim for relief. Where, however, a claim fails as a matter of law, granting leave to amend would be futile. See, e.g., McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir.2004) (“Leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts...”); Cahill, 80 F.3d 336, 339 (9th Cir.1996). Because this is the case here, the court dismisses Louie’s complaint with prejudice. . First Amended Complaint, ¶ 6-8. . Id., ¶ 12 . Id., ¶ 25-29. . Under Rule 201 of the Federal Rules of Evidence, the court may take judicial notice of the records of state courts, the legislative histoiy of state statutes, and the records of state administrative agencies. See, e.g., Alpha III, Inc. v. City of San Diego, 187 Fed.Appx. 709, 710, 2006 WL 1876853, *1 (9th Cir.2006) (Unpub.Disp.) (\"We take judicial notice of the state court's written opinions and final judgment...''); Choker v. Crogan, 428 F.3d 1215, 1223 n. 8 (9th Cir.2005) (granting plaintiff's request to take judicial notice of the legislative history of a state statute); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001) (explaining that a court may judicially notice undisputed matters of public record but not disputed facts stated therein); Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1064 n. 7 (9th Cir.1998) (holding that state health department records were proper subjects of judicial notice); Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir.1997) (noting that a court \"may properly take judicial notice of the papers filed” in both federal and state court proceedings); United States ex rel. Robinson Ranche-ría Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (\"[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. The proceedings before the California Superior Court are 'directly related’ to this appeal and may in fact be disposi-tive. Accordingly, we take" }, { "docid": "8677617", "title": "", "text": "at *1 (W.D.Wash. Apr. 21, 2006); see also United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir.2003). Where a court grants a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c), leave to amend should be freely given if it is possible that further factual allegations will cure any defect. See Somers v. Apple, Inc., 729 F.3d 953, 960 (9th Cir.2013) (“[A] district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factional allegations.... ”). B. Plaintiffs Have Failed to State a Claim for a Violation of Title IX, But Will Be Granted Leave to Amend Defendants raise a number of challenges to Plaintiffs’ Title IX claim. First, they argue that Plaintiffs cannot, under California’s survival statute (Cal. Code Civ. Proc. § 377.34), state a claim under Title IX to the extent they seek emotional damages (pain, suffering, and the like). Dkt. No. 27, at 4. Second, they argue that Plaintiffs lack standing to assert the Title IX claim. Third, they imply that as the underlying conduct constitutes “domestic violence,” it does not constitute “sexual harassment” for purposes of Title IX. Id. at 8. Fourth, they argue that there is not a sufficient basis for concluding that Defendants “knew or should have known” about Lumbreras’ harassing conduct. Id. Finally, they argue there is no causal link between their alleged failure to act under Title IX and the automobile accident in which Milanca and Xavier died. Id. at 9. The Court rejects Defendants first three arguments. However, Plaintiffs’ Title IX claim suffers from a number of defects. Accordingly, the Court will dismiss this claim with leave to amend. 1. Plaintiffs Have Standing to Assert Milanca’s Title IX Claims Defendants argue that Defendants lack standing to bring a claim for violation of Title IX. Defendants are correct that, in general, non-students such as parents do not have a personal claim under Title IX. See R.L.R. v. Prague Public School Dist. I-103, 838 F.Supp. 1526, 1530 (W.D.Okla.1993) (“Non-students have no claim under Title IX.”); see also" }, { "docid": "16437692", "title": "", "text": "on subject-matter jurisdiction, the moving party asserts that a plaintiffs allegations are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a facial challenge to subject-matter jurisdiction, the factual allegations of the complaint are presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 1 (9th Cir.2003). By contrast, where a defendant raises a factual challenge to federal jurisdiction, “the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment,” Safe Air v. Meyer, 373 F.3d at 1039, citing Savage, 343 F.3d at 1039 n. 2, and “need not presume the truthfulness of the plaintiffs allegations,” id., citing White, 227 F.3d at 1242. “Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts.” 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of jurisdiction without leave to amend “unless it is clear, upon de novo review, that the complaint could not be saved by amendment.” Snell v. Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir.2002), citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir.2001). FACTUAL BACKGROUND I. The Parties The plaintiffs are current or former members of the Oregon National Guard who were allegedly injured by exposure to sodium dichromate while deployed in Kuwait and Iraq in 2003. Defendant KBR is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KBR is the corporate parent of defendants Kellogg Brown & Root Services, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc. Defendant Kellogg Brown & Root Services, Inc. (“KB & RS”), is a corporation organized under the laws of the State of Delaware with its principal place" }, { "docid": "14080898", "title": "", "text": "Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir.1985); Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir.1980). B. Motion to dismiss Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In answering this question, the court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). If the court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). C. Rule 56(f) Rule 56(f) of the Federal Rules of Civil Procedure provides that, upon a showing by the party opposing a motion for summary judgment that it “cannot for reasons stated present by affidavit facts essential to justify the party’s opposition,” the court may deny or continue the motion for summary judgment in" }, { "docid": "11616129", "title": "", "text": "without contravening § 2 of the FAA. Accordingly, the holding of Discover Bank is not preempted by § 2 of the FAA. B. Motion to Dismiss 1. Legal Standard Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. Fed.R.Civ.P. 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In answering this question, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). Defendants seek dismissal of Plaintiffs’ FAC on four grounds: (1) Plaintiffs lack standing to bring their claims under California’s UCL and FAL because they fail to adequately plead actual reliance and injury in fact; (2) Plaintiffs cannot allege false or deceptive advertising as a matter of law because consumers are expected to know that California law requires sales tax to be added to advertised items; (3) Plaintiffs’ claim for restitution under the UCL" } ]

[ { "docid": "16084623", "title": "", "text": "cannot seriously consider appellants’ assertions in its fourth assignment of error, characterizing the transfers here in issue as transfers made in the ordinary course of the business or financial affairs of the debtors, given the totally unorthodox and illegal manner in which debtors conducted their collective business operations during the ninety-day predeclaration period. 11 U.S.C. § 547(c)(2). See generally Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986) (Payments are not in the ordinary course of business when they are the result of “pre-bankruptcy planning.”). The obviously calculated fraudulent business manipulations designed to expedite the diversion and misappropriation of the mortgagors’ and appellants’ monies by commingling the purported escrow funds through the Salem Central Account, which consistently had a negative balance, do not comport with ordinary course of business practices commonly pursued by properly conducted mortgage companies and/or service institutions. 11 U.S.C. § 547(c)(2)(C); In re Magic Circle Energy Corp., 64 B.R. 269, 274 (Bankr.W.D.Okl.1986) (“To be objectively ‘ordinary’ implies that the subject transfer did not deviate from the industry norm.”); In re Steel Improvement Co., 79 B.R. 681, 684 (Bankr.E.D.Mich.1987) (The party claiming the ordinary business exception bears the burden of proving that the payments at issue “were consistent with ordinary course of business in the parties’ industry.”). This court finds no error in the bankruptcy court’s conclusions as affirmed by the district court that the indebtedness incurred by the debtors, including the diversion and misappropriation of funds from the Salem Central Account to satisfy preferred creditors, was not in accordance with ordinary business practices. Finally, although the district court erroneously refused to review the bankruptcy court’s exercise of discretion in certifying the defendant class pursuant to Fed.R.Civ.P. 23(b)(1), appellants’ assignment of error has nevertheless been properly preserved for consideration by this court. An examination of the record does not, however, disclose that the bankruptcy court abused its discretion in its class certification. The operative facts support the bankruptcy court’s conclusion that the defendants’ class certification falls within the requirements of Rule 23(b)(1). At the outset, it is noted that the appellants take" } ]

[ { "docid": "4799540", "title": "", "text": "appellant requests, to require only that a transfer be in the ordinary course of dealings between the parties, because that requirement is already contained in 11 U.S.C. § 547(c)(2)(B). In addition, the Bankruptcy Court’s interpretation of this section is consistent with that of other courts. See e.g., In re Colonial Discount Corp., 807 F.2d 594 (7th Cir.1986); In re Atlantic Fish Market Inc., 100 B.R. 755, 756 (Bankr.E.D.Pa.1989); In re American International Airways, Inc., 83 B.R. 324, 332-33 (Bankr.E.D.Pa.1988), aff'd, C.A. No. 88-3529 (E.D.Pa. Aug. 15, 1988), rev’d on other grounds sub nom., Begier v. United States, 878 F.2d 762 (3rd Cir. 1989), cert. granted, — U.S. -, 110 S.Ct. 714, 107 L.Ed.2d 734 (1990). Similarly, the Bankruptcy Judge did not err in concluding that the transfers of property between appellant, Private Line, Inc., and debtor-appellee, Samar Fashions, Inc., occurred outside of their normal course of dealings. The payments by debt- or-appellee were made 88 and 110 days late. Appellant attempted to establish that these payments were made in the normal course of business between the parties by arguing that debtor-appellee regularly made payments this late. It based this contention on ledger cards obtained during discovery which allegedly established an average 60-day delay in payment. These cards were referred to during appellant’s cross-examination of Richard First , debt- or-appellee’s former Controller, and in a Memorandum of Law submitted by appellant to the Bankruptcy Court after the hearing on December 6, 1989, but were never admitted into evidence. The Bankruptcy Court refused to consider the ledger cards because they were not admitted in evidence. Relying upon the testimony of Mr. First, the Bankruptcy Court found that- debtor-appellee paid its accounts in an average of 45 days after the date of invoice. Appellant claims the Bankruptcy Judge committed reversible error in refusing to consider the ledger cards obtained from debtor-appellee. As the Bankruptcy Court noted, however, these cards were never offered in evidence. It was not reversible error for the Bankruptcy Court under these circumstances to refuse to consider this evidence. The Bankruptcy Court also did not err in concluding that the" }, { "docid": "21571905", "title": "", "text": "by regularly borrowing money from small investors and then lending it out at higher interest rates. The incurrence of such debt was a regular part of its daily business, much like a bank or savings and loan institution. See In re Control Elec., Inc., 91 B.R. at 1011 (incurrence of long-term loans could be considered within the ordinary course of business for a bank); In re Bourgeois, 58 B.R. at 660 (same). While the use of long-term debt may not be in the ordinary course of business for many industries or individuals, in this case, we believe it was. See also Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986) (undertaking long-term debt an ordinary part of real estate business). We also concur with the bankruptcy court’s conclusions with regard to the remaining requirements under § 547(c)(2). The affidavits of the defendants each indicate that their investment in the savings certificates was a regular part of the management of their financial affairs. Mr. Harrison’s affidavit likewise reveals that the redemption of the defendants’ certificates was conducted in a regular manner, pursuant to the terms of the certificates, and without any indication that the corporation was having financial difficulties. Fi nally, payments on the certificates were according to ordinary business terms, exactly as provided for, and without acceleration or reduction in the payoff amount. Fidelity does not directly controvert these findings, but instead contends they were in error in light of the Oklahoma Securities Commission’s suspension of Fidelity’s securities registration for violations of the Oklahoma Securities Act. Fidelity relies on several cases which have denied § 547(c)(2) protection to transfers made by the debtor arising out of transactions which, from their inception, were designed to work a fraud. See, e.g., Gravity v. Brooks (In re Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 819 F.2d 214, 216-17 (9th Cir.1987) (debtor operating a “Ponzi” scheme); Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 481 (Bankr.D.Nev.1985) (same); Edmonson v. Bradford-White Corp. (In re Tinnell Traffic Servs., Inc.), 41 B.R. 1018, 1023 (Bankr.M.D.Tenn.1984) (debtor made" }, { "docid": "7208299", "title": "", "text": "does not dispute that the subject payments satisfy the conditions of § 547(b). However, R & G asserts an affirmative defense of “ordinary course of business” payments under § 547(c)(2). For purposes of the motion for summary judgment, the Court will consider the § 547(b) preference elements to be admitted and will direct its discussion to the merits of R & G’s affirmative defense. The trustee may not avoid a transfer to the extent that the transfer (1) was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of both the debtor and the transferee; (2) the transfer was made in the ordinary course of business or financial affairs of the debtor and the transferee; and (3) according to ordinary business terms. § 547(c)(2)(A-C). The focus of the parties in this case is upon the second element, whether payment was made in the ordinary course of the parties’ business. The other two factors are not in dispute. The purpose of the “ordinary course” exception is “to leave undisturbed normal financial relations ...” Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594 (7th Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987), because an otherwise preferential transfer made “in the ordinary course of business” does not detract from the general policy of § 547(b) of discouraging unusual action by the debtor or its creditors during the debt- or’s slide into bankruptcy. WJM, Inc. v. Massachusetts Department of Welfare, 840 F.2d 996, at 1010 (1st Cir.1988). The Code does not define “ordinary course,” but, the courts have considered the issue in a multitude of eases. “To qualify for the ordinary course exception, a creditor must prove that: (1) a debt and its payment are ordinary in relation to past practices between the debtor and the particular creditor; and (2) the payment was ordinary in relation to prevailing business standards.” WJM, Inc. v. Massachusetts Department of Welfare, 840 F.2d 996, 1010-11 (1st Cir.1988); Mordy v. Chemcarb, Inc., (In re Food Catering & Housing, Inc.), 971 F.2d 396," }, { "docid": "23408171", "title": "", "text": "controversy was incurred in the ordinary course of both the debtor’s and creditor’s business; (B) The controverted payment was made in the ordinary course of business of both the debtor and the creditor; and (C) The payment was made in accordance with ordinary business terms. 11 U.S.C. § 547(c)(2). See generally, 4 Collier on Bankruptcy ¶ 51.10 at 547-51 (15th ed.1990). “The purpose of this exception is to leave undisturbed normal financial relations, because it does not detract from the general bankruptcy section to discourage unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 373-74 (1977). The section was “designed to encourage creditors to continue to deal with troubled debtors on normal business terms by obviating any worry that a subsequent bankruptcy filing might require the creditor to disgorge as a preference an earlier received payment.” Barnhill v. Johnson, 503 U.S. 393, 402, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). Stated another way, “[t]he purpose of the ordinary course exception is to ensure that normal commercial transactions are not caught in the net of the trustee’s avoidance powers.” Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987). The ordinary course exception is “directed primarily to ordinary trade credit transactions.” Marathon Oil Co. v. Flatau (In re Craig Oil Co.), 785 F.2d 1563, 1567 (11th Cir.1986). Courts and commentators agree that the exception 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 Collier on Bankruptcy ¶ 547.10 at 547-52 (15th ed.1990). The ambit of a recurring, customary credit transaction is fairly broad. In Union Bank v. Wolas, 502 U.S. 151, 162, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991), for example, the Court held that the “ordinary course” exception is available for payments on both long and short-term financial obligations. See also, Rieser v. Randolph County Bank (In re Masters), 137 B.R. 254, 261 (Bankr.S.D.Ohio 1992);" }, { "docid": "4769112", "title": "", "text": "not available where the conduct of the debtor’s business is “totally unorthodox and illegal.... ” First Fed. of Michigan v. Barrow, 878 F.2d at 918. In First Fed. of Michigan v. Barrow, on summary judgment, the Sixth Circuit rejected the ordinary course of business defense where “the indebtedness incurred by the debtors, including the diversion and misappropriation of funds ... was not in accordance with ordinary business practices.” Id. at 919. In Yurika Foods Corp. v. United Parcel Serv. (In re Yurika Foods Corp.), 888 F.2d 42 (6th Cir.1989), the district court based rejection of the § 547(c)(2) defense on the holding that the debtor had made payments that were illegal under ICC regulations. On appeal, the Sixth Circuit concluded that the debtor’s payments were “not unauthorized or unlawful under the ICC regulating scheme, and as such [are] not per se outside of the ordinary course of business exception.” Id. at 44. Other Sixth Circuit cases have held that where the debtor’s business transactions are only “irregular,” they may be “ordinary” for § 547(c)(2) purposes if “consistent with the course of dealings between the particular parties.” Fulghum Constr. Corp., 872 F.2d at 743; In re Finn, 909 F.2d at 907. However, “irregular” transactions will fail ordinary course of business analysis if, during the preference periods, the debtor or the transferee changed the timing, the amount, the manner or the circumstances under which business was previously transacted. Yurika Foods Corp., 888 F.2d at 45. 1. The Debtors’ Illegal Check Kiting Scheme is Outside the § 547(c)(2) Defense The debtors’ conduct during the preference period renders the ordinary course of business defense unavailable under the “totally unorthodox and illegal” standard in First Fed. of Michigan v. Barrow, 878 F.2d 912 (6th Cir.1989) and Yurika Foods Corp. v. United Parcel Serv. (In re Yurika Foods Corp.), 888 F.2d 42 (6th Cir.1989). Check kiting is unlawful. 18 U.S.C. § 1344; TENN.CODE ANN. § 39-14-121. The evidence of check kiting was uncontra-dicted by the Bank. Like the debtors in First Fed. of Michigan v. Barrow, these debtors misappropriated funds from TNB and others by fraud." }, { "docid": "11727859", "title": "", "text": "to avoid being left out. See In re Tolona Pizza Prods. Corp., 3 F.3d 1029, 1032 (7th Cir.1993); Harman v. First Am. Bank (In re Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 488 (4th Cir.1992) (holding that payments were in ordinary course because, although not common, they did not favor certain creditors or encourage a race to dismember the creditor); Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986) (“The obvious extra ‘ordinary’ transaction is one designed to give the transferee an advantage over other creditors in bankruptcy.”), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987). Ordinary business terms therefore are those used in “normal financing relations”: the kinds of terms that creditors and debtors use in ordinary circumstances, when debtors are healthy. Such terms do not raise .the dangers that the preference section seeks to avoid. Even arrangements that creditors commonly try to use when a debtor is struggling may give a creditor an advantage over others and precipitate bankruptcy. For example, filing .a lawsuit to enforce a debt may not be unusual when a debtor does not pay, but payments according to a settlement agreement are not according to ordinary business terms. Cf. Gull Air, Inc. v. Beech Acceptance Corp. (In re Gull Air, Inc.), 82 B.R. 1, 3-4 (Bankr.D.Mass.1988) (holding that payments according to a settlement agreement were not in the ordinary course of business because a lawsuit is an unusual collection method). The escrow arrangement with Balcor was not a normal financing relationship. The record shows that creditors in the industry use such an arrangement only in extraordinary circumstances, when debtors are in trouble. Appellee’s Supp.App. Tab 3, at 127, 129-32, 141 — 12. The record also suggests that Balcor entered the escrow agreement with the debtors because the debtors were delinquent and Balcor was worried about getting paid. Id. at 70. Furthermore, the escrow agreement enabled Balcor to favor itself. Balcor occasionally used this power to make sure that money was available for itself by denying other payments. The record supports the finding that" }, { "docid": "4769091", "title": "", "text": "486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988). The Sixth Circuit recognizes that a debt for preference purposes arises at the moment of a debtor’s fraud. In First Fed. of Michigan v. Barrow, 878 F.2d 912 (6th Cir.1989), the debtors were in the business of arranging and managing mortgage loans. The debtors operated from a network of “zero balance accounts” and a central depository account—a cash management system (like that designed by TNB). When cash flow became insufficient to service its mortgages and make payments to investors, Salem used the central depository account to commingle all incoming funds, including “trust fund” deposits by homeowners, mortgage payments, rental payments and loan advances. The commingled funds were used indiscriminately as a reservoir to make disbursements to favored creditors and others. After bankruptcy, the trustee brought preference actions to recover funds paid from the central account during the 90 days prior to bankruptcy. The defendants argued the absence of antecedent debt. The Sixth Circuit easily dispatched the argument: When the debtors ... elected to implement banking practices and procedures that were calculated to facilitate the manipulation, diversion and misappropriation of collected mortgage payments, they realigned the configuration of certain debtor/creditor relationships.... [T]he debtors’ conversion of the mortgage payments had occurred at the moment when the identifiable funds were deposited into Salem’s negative balance Central Account from which transfers were made to satisfy debtors’ pre-exist-ing indebtedness ... The instant case is analogous to Feinblatt v. Block, 456 F.Supp. 776 (D.Md.1978), aff'd in relevant part, modified in part, unpublished per curiam, 605 F.2d 1201 (4th Cir.1979), wherein it was stated: Kline’s misappropriation of Block’s money made him Block’s debtor at the time of the misappropriation_ Barrow, 878 F.2d at 917-918. The debtors’ check kiting .was a misappropriation or conversion of TNB’s money. Walser v. International Union Bank (In re Cohn), 21 F.2d 294, 296 (2d Cir.1927). Check kiting realigned the ordinary debt- or/creditor relationships at work in the cash management accounts by rendering Montgomery and Southland the Bank’s debtors. The unauthorized loans generated by the debtors’ kiting of checks gave rise to a" }, { "docid": "1102141", "title": "", "text": "I must look to the parties’ earlier business conduct, the common industry practice, and specifically, whether the payment resulted from any unusual action by either the debtor or creditor. Xtra, Inc. v. Seawinds Ltd. (In re Seawinds Ltd.), 888 F.2d 640 (9th Cir.1989); Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986); Waldshmidt v. Ranier (In re Fulghum Const. Corp.), 872 F.2d 739 (6th Cir.1989). The bankruptcy court’s findings are not clearly erroneous and are supported by the record. First, the parties’ earlier conduct did not include an escrow or lockbox arrangement. It only included an ordinary promissory note and deed of trust. The escrow agreements were not entered into at the time of the loans. The one was executed nearly 21 months after the corresponding note, the other nearly fifteen months later. Second, there was little evidence tending to show that such lockbox arrangements were used commercially or within the industry except when a loan was in default, where the lender was preparing to foreclose, or where there were other lender relationship problems. Finally, the preferential payments clearly resulted from unusual action on both the debtor and creditor’s part. The escrow agreements came into being only after the partners were insolvent and in default on their loans as a way to satisfy Balcor that the rents would not disappear without paying Balcor and the other trade creditors. The bankruptcy court properly treated such an arrangement as an unusual collection effort on Balcor’s part. I therefore conclude that the bankruptcy court ruled correctly when it refused to dismiss the complaint on the basis that there was no unusual debt collection practice. III. The Trustee’s Cross-Appeal The trustee argues that the bankruptcy court erred when it concluded that Balcor was not a controlling insider within the meaning of § 547(b)(4)(B) and § 101(31). I disagree. Under 11 U.S.C. § 101(31)(C)(v), an insider includes one who is in control of the debtor. Case law teaches that I must look to the totality of the circumstances to determine when a creditor has assumed control of the debtor." }, { "docid": "21581909", "title": "", "text": "785 F.2d 1563, 1566 (11th Cir.1985) (purpose of the section is to protect those payments which do not result from “unusual” debt collection or payment practices). See also In re Colonial Discount Corp., 807 F.2d 594, 600 (7th Cir.1986) (when debtor’s business regularly involved borrowing large sums of money, such loans were in ordinary course of business; even loans made on the eve of bankruptcy to relieve a debt- or’s cash flow problems may be considered “ordinary”), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987). The advances were not unusual but mandated by Fulghum’s business, i.e., by the slow payment practices of the pipeline companies with which it had contracted. Accordingly, the advances were not only ordinary transactions between the parties but were necessary and without which Fulghum could not have accommodated its immediate cash flow requirements. This court declines to discourage transactions of the type here at issue, which were a paradigmatic example of the type of transaction promoted by § 547(c). The primary purpose of that section was to encourage “short term credit dealing[s] with troubled debtors in order to forestall bankruptcy.” See In re First Software Corp., 81 B.R. at 213. See also O’Neill v. Nestle Libby’s P.R., Inc., 729 F.2d 35, 37 (1st Cir.1984) (§ 547(c)(2) exception is designed to encourage creditors to conduct business with a struggling enterprise so that debtors can rehabilitate themselves). In the case at bar, Ranier & Associates advanced funds under the good faith belief that Fulg- hum would complete and substantially profit from the four pipeline projects. Indeed, the repayments did not injure the rights of other creditors because the initial advances were made so that those creditors could be paid while Fulghum awaited the receipt of monies for work performed on construction projects. Cf. In re Magic Circle, 64 B.R. at 274 (where alleged preferences benefited both creditor and debtor, they were not avoidable). There is no allegation that the repayment to Ranier & Associates was in bad faith. See In re Craig Oil, 785 F.2d at 1565 (debtor’s state of mind is relevant to" }, { "docid": "11727858", "title": "", "text": "similarly situated members of the industry facing the same or similar problems.”); Morris v. Kansas Drywall Supply Co. (In re Classic Drywall, Inc.), 121 B.R. 69, 75 (D.Kan.1990) (“If an accepted or common practice of the industry, it is an ‘ordinary business term.’ ’.’). Or it could mean terms that are used in usual or ordinary situations. We think that the purposes of the preference section suggest the latter meaning. The purpose of the ordinary course exception is “to leave undisturbed normal financing relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy.” S.Rep. No. 989, 95th Cong., 2d Sess. 88 (1978), 1978 U.S.C.C.A.N. 5787, 5874. The preference section does not discourage “unusual action” simply because others in the industry wouldn’t respond to similar circumstances in the same way. It discourages “unusual action” that may favor certain creditors or hasten bankruptcy by alarming other creditors and motivating them to force the debtor into bankruptcy to avoid being left out. See In re Tolona Pizza Prods. Corp., 3 F.3d 1029, 1032 (7th Cir.1993); Harman v. First Am. Bank (In re Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 488 (4th Cir.1992) (holding that payments were in ordinary course because, although not common, they did not favor certain creditors or encourage a race to dismember the creditor); Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986) (“The obvious extra ‘ordinary’ transaction is one designed to give the transferee an advantage over other creditors in bankruptcy.”), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987). Ordinary business terms therefore are those used in “normal financing relations”: the kinds of terms that creditors and debtors use in ordinary circumstances, when debtors are healthy. Such terms do not raise .the dangers that the preference section seeks to avoid. Even arrangements that creditors commonly try to use when a debtor is struggling may give a creditor an advantage over others and precipitate bankruptcy. For example, filing" }, { "docid": "21571904", "title": "", "text": "of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, (2) that the transfer was made in the ordinary course of business or financial affairs of the debtor and the transferee, and (3) that the transfer was made according to ordinary business terms. 11 U.S.C. § 547(c)(2). Since the bankruptcy court’s determination of these issues involves findings of fact, we will not disturb these findings unless they are clearly erroneous. Bartmann v. Maverick Tube Corp., 853 F.2d at 1543. Based on the affidavits of the defendants, the affidavit of Mr. Greg Harrison, Fidelity’s sales representative, and other materials supporting the motions for summary judgment, the bankruptcy court determined that each of the above requirements was met. First, it found that the debts represented by the savings certificates were incurred by Fidelity in the ordinary course of its business or financial affairs. We agree. Fidelity was in the business of making small, high interest consumer loans, and it was only able to do this by regularly borrowing money from small investors and then lending it out at higher interest rates. The incurrence of such debt was a regular part of its daily business, much like a bank or savings and loan institution. See In re Control Elec., Inc., 91 B.R. at 1011 (incurrence of long-term loans could be considered within the ordinary course of business for a bank); In re Bourgeois, 58 B.R. at 660 (same). While the use of long-term debt may not be in the ordinary course of business for many industries or individuals, in this case, we believe it was. See also Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986) (undertaking long-term debt an ordinary part of real estate business). We also concur with the bankruptcy court’s conclusions with regard to the remaining requirements under § 547(c)(2). The affidavits of the defendants each indicate that their investment in the savings certificates was a regular part of the management of their financial affairs. Mr. Harrison’s affidavit likewise reveals that the" }, { "docid": "13935379", "title": "", "text": "formed Debtor in December 1983. Mr. Wilson testified that he owned 250 shares of Debtor’s stock. The Court in In re Yonkers Hamilton Sanitarium, Inc., stated: The persons who might be expected to control a corporate debtor are its officers, directors and substantial stockholders. Thus, aside from officers and directors, a person is an insider if that person meets the test of an “affiliate” [§ 101(25)(E) ] under Code § 101(2)(A) and: “... directly or indirectly owns, controls, or holds with power to vote, 20 per cent or more of the outstanding voting securities of the debtor ... ”, The Legislative History with respect to the definition of “affiliate” reveals that this term is defined primarily for use in the definition of an insider. House Report No. 95-595, 95th Cong. 1st Sess. (1977) 309 U.S.Code Cong. & Admin. News 1978, p. 5787. Plaintiff has not shown that Mr. Parker or Mr. Culp were shareholders when the transfers were made. Nor has Plaintiff shown any acts by which Mr. Parker or Mr. Culp controlled Debtor. This Court finds that Plaintiff has failed to carry his burden on this element concerning Mr. Parker or Mr. Culp. The Court does not need to consider the remaining elements with respect to them. The final element Plaintiff must prove with respect to Mr. Wilson, Mr. Gordon and Mr. Dempsey is that the “creditor received more than it would if the case were a chapter 7 liquidation case, the transfer had not been made, and the creditor received payment of the debt to the extent provided by the provisions of the Code.” 11 U.S.C.A. § 547(b)(5) (West 1979); 4 Collier on Bankruptcy ¶ 547.08 (15th ed. 1987). Under this test, a creditor is charged with the value of the transferred property plus the value of the amount he would be entitled to receive in a distribution under Chapter 7. Elliott v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1421 (9th Cir.1985). The Supreme Court in Palmer Clay Products Co. v. Brown explained the application of this test as follows: Whether a creditor" }, { "docid": "18487965", "title": "", "text": "this Court need not interpret that signal for it is bound by Judge Mihm’s decision in Rogers, which this Court perceives is correct. Recently, the court in Matter of CHG Intern., Inc., 897 F.2d 1479 (9th Cir.1990), reached the same result, deciding that the 1984 amendment eliminated the artificial 45-day limitation and nothing more. Alternatively, the Defendant argues that the note dated June 15,1987, maturing on December 30, 1987, was a “short-term” debt which is unquestionably within the confines of Section 547(c)(2), citing In re Colonial Discount Corp., 807 F.2d 594 (7th Cir.1986). In that case, the debtor was in the business of buying and selling real estate. At the time the debtor filed bankruptcy, it held hundreds of separate parcels of real estate. One hundred four days prior to the filing, the debtor borrowed $150,000.00 from a lender, giving the lender a security interest on a tract of real estate. The note and mortgage were later assigned to a surety on the loan. Twenty-one days later, and two days before the note matured, the debtor paid the surety $50,000.00 on the loans, which was transmitted to the lender. The maturity date of the note was extended for 21 days. Because the debtor failed to pay the note, the surety paid the lender the amount due. Holding that the loan and the $50,000.00 payment were made in the ordinary course of business, the court stated: The purpose of the ordinary course of business exception is to ensure that normal commercial transactions are not caught in the net of the trustee’s avoidance powers. The obvious extra-“ordinary” transaction is one designed to give the transferee an advantage over other creditors in bankruptcy. Nothing in the record suggests that the ... loan transaction was related in any way to pre-bankruptcy planning. The loan was originally made some 104 days prior to the bankruptcy filing date and the payment in question some 79 days prior thereto. Nor does it indicate any “unusual action by either the debtor or creditor” to collect or pay on the deal. On the contrary, the record shows that for" }, { "docid": "21581908", "title": "", "text": "Cir.1982) (stipulating that bank overdraft coverage was within ordinary course of business). Additionally, the number and short-term duration of the advances and prompt repayments required of Fulghum militate in favor of a finding that the $300,000 in question was advanced in the ordinary course of business and pursuant to the ordinary terms of the parties’ business. The advances and repayments were “recurring” in nature as demonstrated by over 100 such transactions which were executed between November, 1978 and November, 1979. See e.g. WJM, 840 F.2d at 1011 (there is a consensus that “ordinary course of business” encompasses recurring, customary credit transactions). See also In re Magic Circle Energy Corp., 64 B.R. 269, 274 (Bankr.W.D.Okla.1986) (transfers by Chap. 11 debtor to creditor were in ordinary course of business where debtor had been making transfers for over a year). Correspondingly, it was apparent that the controversial $300,000 repayment did not result from “unusual debt collection or payment practices,” but was simply one of many repayments to Ranier & Associates from Fulghum. See In re Craig Oil Co., 785 F.2d 1563, 1566 (11th Cir.1985) (purpose of the section is to protect those payments which do not result from “unusual” debt collection or payment practices). See also In re Colonial Discount Corp., 807 F.2d 594, 600 (7th Cir.1986) (when debtor’s business regularly involved borrowing large sums of money, such loans were in ordinary course of business; even loans made on the eve of bankruptcy to relieve a debt- or’s cash flow problems may be considered “ordinary”), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987). The advances were not unusual but mandated by Fulghum’s business, i.e., by the slow payment practices of the pipeline companies with which it had contracted. Accordingly, the advances were not only ordinary transactions between the parties but were necessary and without which Fulghum could not have accommodated its immediate cash flow requirements. This court declines to discourage transactions of the type here at issue, which were a paradigmatic example of the type of transaction promoted by § 547(c). The primary purpose of that section was to" }, { "docid": "1102140", "title": "", "text": "(In re Shurtleff, Inc., 778 F.2d 1416, 1421 (9th Cir.1985)); In re Buyer’s Club Markets, Inc., 123 B.R. 895 (Bankr.D.Colo.1991). I accordingly affirm the bankruptcy court’s decision in this respect as well. D. Ordinary Course of Business— § 547(c)(2) Balcor’s final argument is that the payments were made in the ordinary course of business and did not arise out of unusual debt collection or payment practices. To satisfy the ordinary course of business exception, a creditor must show that the payments were made in the ordinary course of the creditor’s business, made according to ordinary business terms, and made in the ordinary course of business. Union Bank v. Wolas, — U.S. -, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991). The defense is available for both short-term and long-term debt obligations. Id. Ordinary course of business payments do not include payments which arise out of an unusual debt collection or payment practice. Marathon Oil Co. v. Flateau (In re Craig Oil Co.), 785 F.2d 1563 (11th Cir.1986); In re Miniscribe, 123 B.R. 86 (Bankr.D.Colo.1991). In general, I must look to the parties’ earlier business conduct, the common industry practice, and specifically, whether the payment resulted from any unusual action by either the debtor or creditor. Xtra, Inc. v. Seawinds Ltd. (In re Seawinds Ltd.), 888 F.2d 640 (9th Cir.1989); Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986); Waldshmidt v. Ranier (In re Fulghum Const. Corp.), 872 F.2d 739 (6th Cir.1989). The bankruptcy court’s findings are not clearly erroneous and are supported by the record. First, the parties’ earlier conduct did not include an escrow or lockbox arrangement. It only included an ordinary promissory note and deed of trust. The escrow agreements were not entered into at the time of the loans. The one was executed nearly 21 months after the corresponding note, the other nearly fifteen months later. Second, there was little evidence tending to show that such lockbox arrangements were used commercially or within the industry except when a loan was in default, where the lender was preparing to foreclose, or where there" }, { "docid": "4769121", "title": "", "text": "TNB. The debtors’ course of business changed dramatically in response to deletion of the cash management system at TNB. Between April 19 and April 21, Montgomery stopped kiting checks at TNB. After April 19, Montgomery manipulated accounts at other banks to build up the Main Funding Account to withdraw TNB from the kite and to eliminate uncollected balances at TNB. See Omaha Nat’l Bank v. T & T Parts Warehouse, Inc., 39 B.R. 399 (Bankr.W.D.Mich.1984) (ordinary course of business defense not available where bank worked its way out of a check kite by allowing the build up of funds). The debtors’ changes in business practices gave TNB an advantage over other similarly situated creditors by permitting TNB to withdraw from the kite. Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594 (7th Cir.1986), cert. denied, Octopi, Inc. v. Courtney, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987) (cited with approval in First Fed. of Michigan v. Barrow, 878 F.2d at 918, “the obvious ‘extraordinary’ transaction is one designed to give the transferee an advantage over other creditors in bankruptcy.”). During this process of working TNB out of the kite, Montgomery bounced checks totalling $320,000 and covered with cashier’s checks — the first mention of cashier’s checks in the relationship between the debtors and TNB. After the kite shifted to other banks, Montgomery made payments totalling $242,517 on the term loan — the first since creation of the line of credit in August of 1987. These unusual actions by TNB and by the debtors during the preference period enabled TNB to “win” the race to the courthouse. Waldschmidt v. Mid-State Homes, Inc. (In re Pitman), 843 F.2d 235, 237 (6th Cir.1988). III. TNB improved its position during the preference period from its point of greatest insecurity on March 21 of $2,012,418 by transfers that preferred the Bank over other victims of the debtors’ check kiting scheme. In addition, during the preference period, after deletion of the cash management system and after the kite was shifted to other banks, transfers were made to TNB total-ling $242,517 in" }, { "docid": "7208300", "title": "", "text": "leave undisturbed normal financial relations ...” Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594 (7th Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987), because an otherwise preferential transfer made “in the ordinary course of business” does not detract from the general policy of § 547(b) of discouraging unusual action by the debtor or its creditors during the debt- or’s slide into bankruptcy. WJM, Inc. v. Massachusetts Department of Welfare, 840 F.2d 996, at 1010 (1st Cir.1988). The Code does not define “ordinary course,” but, the courts have considered the issue in a multitude of eases. “To qualify for the ordinary course exception, a creditor must prove that: (1) a debt and its payment are ordinary in relation to past practices between the debtor and the particular creditor; and (2) the payment was ordinary in relation to prevailing business standards.” WJM, Inc. v. Massachusetts Department of Welfare, 840 F.2d 996, 1010-11 (1st Cir.1988); Mordy v. Chemcarb, Inc., (In re Food Catering & Housing, Inc.), 971 F.2d 396, 398 (9th Cir.1992). R & G’s employment began in November 1989. R & G submitted to the Court a “Billing/Payment Summary” (see below) which illustrates R & G’s billing history of BNEC during the year prior to the BNEC bankruptcy. From January 26, 1990 to August 8, 1990, R & G sent fifteen (15) invoices to BNEC for legal services. All of the payments made by BNEC during this period were made outside of the ninety (90) day preference period and are not the subject of this adversary proceeding. Invoice Date Amount Paid On # of Days Outstanding 1/26/90 $12,744.11 2/26/90 31 3/21/90 $25,954.71 6/20/90 91 4/24/90 $12,626.82 5/21/90 27 5/04/90 $50,541.24 7/13/90 70 5/15/90 $15,560.20 6/18/90 34 5/16/90 $14,685.72 6/18/90 33 6/11/90 2,657.31 6/16/90 7/02/90 $ 2,343.83 7/26/90 24 7/02/90 $35,717.03 7/26/90 24 Invoice Date Amount_Paid On# of Days Outstanding 7/02/90 $40,124,42 7/26/90 24 7/13/90 $60,864,17 9/20/90 69 7/13/90 $44,764,27 8/28/90 46 7/16/90 1,459,92 8/28/90 43 8/24/90 $30,942,23 9/21/90 28 8/24/90 $38,496.83 9/21/90 28 R & G submits that this evidence should be relevant" }, { "docid": "4769120", "title": "", "text": "the Bank pressured Montgomery to solve these problems. On April 7, 1988, within the preference period, TNB put an end to its prior course of dealings with the debtors by deleting the cash management system. The Bank instructed Montgomery to stop using the accounts. The Bank intended to eliminate the debtors as customers and to resolve the debtors’ severe deficit collected balances. Changes in the pattern of use of a deposit account are indicative of a departure from the ordinary course of business, especially where the changes are a “cloak for repayment.” Katz v. First Nat’l Bank of Glen Head, 568 F.2d 964 (2d Cir.1977), cert. denied, First Nat’l Bank of Glen Head v. Katz, 434 U.S. 1069, 98 S.Ct. 1250, 55 L.Ed.2d 771 (1978). Deletion of the cash management system functioned as a cloak for repayment of TNB in two ways — the use of severe deficit collected balances in the Main Funding Account was eliminated and Montgomery was forced to move the kite to other banks to pay off the unauthorized debt at TNB. The debtors’ course of business changed dramatically in response to deletion of the cash management system at TNB. Between April 19 and April 21, Montgomery stopped kiting checks at TNB. After April 19, Montgomery manipulated accounts at other banks to build up the Main Funding Account to withdraw TNB from the kite and to eliminate uncollected balances at TNB. See Omaha Nat’l Bank v. T & T Parts Warehouse, Inc., 39 B.R. 399 (Bankr.W.D.Mich.1984) (ordinary course of business defense not available where bank worked its way out of a check kite by allowing the build up of funds). The debtors’ changes in business practices gave TNB an advantage over other similarly situated creditors by permitting TNB to withdraw from the kite. Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594 (7th Cir.1986), cert. denied, Octopi, Inc. v. Courtney, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987) (cited with approval in First Fed. of Michigan v. Barrow, 878 F.2d at 918, “the obvious ‘extraordinary’ transaction is one designed to give" }, { "docid": "4769111", "title": "", "text": "at 743 quoting Energy Coop., Inc. v. Socap Int'l, Ltd. (In re Energy Coop., Inc.), 832 F.2d 997, 1004 (7th Cir.1987). “[NJormal financial relations” do 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.” Grogan v. Liberty Nat’l Life Ins. Co. (In re Advanced Glove Mfg., Co.), 761 F.2d 249, 251 (6th Cir.1985) quoting H.R.REP. NO. 595, 95th Cong., 1st Sess. 373 (1977) reprinted in, 1978 U.S.CODE CONG. & ADMIN.NEWS 5787, 6329. Bankruptcy courts in this circuit have been instructed to engage in a “peculiarly factual analysis,” focusing on the business practices of the particular parties under consideration. In re Fulghum Constr. Corp., 872 F.2d at 743; Gosch v. Burns (In re Finn), 909 F.2d 903, 907 (6th Cir.1990). Industry practices “might be relevant to the § 547(c)(2)(C) element of ‘ordinary business terms.’ ” Fulghum Constr. Corp., 872 F.2d at 743 n. 5. One line of Sixth Circuit cases indicates that the ordinary course of business defense is not available where the conduct of the debtor’s business is “totally unorthodox and illegal.... ” First Fed. of Michigan v. Barrow, 878 F.2d at 918. In First Fed. of Michigan v. Barrow, on summary judgment, the Sixth Circuit rejected the ordinary course of business defense where “the indebtedness incurred by the debtors, including the diversion and misappropriation of funds ... was not in accordance with ordinary business practices.” Id. at 919. In Yurika Foods Corp. v. United Parcel Serv. (In re Yurika Foods Corp.), 888 F.2d 42 (6th Cir.1989), the district court based rejection of the § 547(c)(2) defense on the holding that the debtor had made payments that were illegal under ICC regulations. On appeal, the Sixth Circuit concluded that the debtor’s payments were “not unauthorized or unlawful under the ICC regulating scheme, and as such [are] not per se outside of the ordinary course of business exception.” Id. at 44. Other Sixth Circuit cases have held that where the debtor’s business transactions are only “irregular,” they may be “ordinary” for § 547(c)(2) purposes" }, { "docid": "23408172", "title": "", "text": "ensure that normal commercial transactions are not caught in the net of the trustee’s avoidance powers.” Courtney v. Octopi, Inc. (In re Colonial Discount Corp.), 807 F.2d 594, 600 (7th Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 526 (1987). The ordinary course exception is “directed primarily to ordinary trade credit transactions.” Marathon Oil Co. v. Flatau (In re Craig Oil Co.), 785 F.2d 1563, 1567 (11th Cir.1986). Courts and commentators agree that the exception 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 Collier on Bankruptcy ¶ 547.10 at 547-52 (15th ed.1990). The ambit of a recurring, customary credit transaction is fairly broad. In Union Bank v. Wolas, 502 U.S. 151, 162, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991), for example, the Court held that the “ordinary course” exception is available for payments on both long and short-term financial obligations. See also, Rieser v. Randolph County Bank (In re Masters), 137 B.R. 254, 261 (Bankr.S.D.Ohio 1992); Warren v. Society Corp. (In re Perks), 134 B.R. 627, 631-32 (Bankr.S.D.Ohio 1991). The court in Gosch v. Burns (In re Finn), 909 F.2d 903, 908 (6th Cir.1990), held that even an isolated, single credit transaction can qualify as a debt incurred in the ordinary course for purposes of this exception. “[A] creditor asserting that a transfer falls within § 547(c)(2) bears the burden of proving each of the three elements. 11 U.S.C. § 547(g).” Miller v. Florida Mining & Materials (In re A.W. & Associates, Inc.), 136 F.3d 1439, 1441 (11th Cir.1998). Each element must be established by a preponderance of the evidence. Logan v. Basic Distribution Corp. (In re Fred Hawes Organization, Inc.), 957 F.2d 239, 244 (6th Cir.1992); Perks, 134 B.R. at 630. “Because of the important policies served by preference law, courts have repeatedly held that the exceptions contained in Code § 547(c), including the ordinary course exception, ‘should be narrowly construed.’ ” Hassett v. Goetzmann (In re CIS Corp.), 195 B.R. 251, 257 (Bankr.S.D.N.Y.1996) [citations omitted]. Ultimately, the “[d]etermination [of" } ]

[ { "docid": "22979601", "title": "", "text": "253, 101 S.Ct. at 1093). For purposes of establishing a prima facie case, Title VII of the 1964 Civil Rights Act is violated when a retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause. In addition, Title VII is violated when an employer is motivated by retaliatory animus, even if valid objective reasons for the discharge exist. Sumner, 899 F.2d at 209; see also Davis, 802 F.2d at 642; DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, n. 8 (2d Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). Once a prima facie case is established by a plaintiff, the burden of production shifts to the employer to demonstrate that a “ ‘legitimate, nondiscriminatory reason’ ” existed for its action, Sumner, 899 F.2d at 209 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093), although the ultimate burden of persuasion remains with the plaintiff. Hicks, — U.S. at-, 113 S.Ct. at 2749; Saulpaugh, 4 F.3d at 142. “The critical question is whether a plaintiff has proven by a preponderance of the evidence that the defendant intentionally discriminated or retaliated against the plaintiff for engaging in protected activity.” Sumner, 899 F.2d at 209 (quoting Wrighten v. Metropolitan Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir.1984)). A plaintiff in a section 704(a) retaliation claim must demonstrate, for the purposes of a prima facie case, that: (1) she was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took adverse action against plaintiff based upon her activity; and' (4) a causal connection existed between the plaintiff’s protected activity and the adverse action taken by the employer. Sumner, 899 F.2d at 208-09 (citation omitted); Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir.1993). To establish that an activity was protected, a plaintiff need only prove that she was acting under a good faith belief that the activity was of the kind covered by the statute. Sumner, 899 F.2d at 209. Finally, a" } ]

[ { "docid": "6263614", "title": "", "text": "judgment dismissing plaintiffs claim of retaliation. Retaliation claims pursuant to 42 U.S.C. § 2000e-3 are subject to the familiar McDonnell Douglas burden shifting analysis previously described. See discussion supra at 234. To establish a prima facie case of retaliation, plaintiff must demonstrate that the employee was engaged in protected activity, that the employer was aware of that activity, that the employee suffered adverse employment decisions, and that there was a causal connection between the protected activity and the adverse employment action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769; Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). a. Whether Plaintiff Engaged In Protected Activity “To prove that [s]he engaged in protected activity, the plaintiff need not estabbsh that the conduct [s]he opposed was in fact a violation of Title VII.” Manoharan, 842 F.2d at 593 (citing Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986)). “However, the plaintiff must demonstrate a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’” Id. (citing Abel v. Bonfanti, 625 F.Supp. 263, 267 (S.D.N.Y.1985); Francoeur v. Corroon & Black Co., 552 F.Supp. 403, 412 (S.D.N.Y.1982)); Quinn, 159 F.3d at 769. On November 29, 1994, plaintiff sent an e-mail to Cox referencing a warning she received from Poux and stating that “I may be PERCEIVING HARASSMENT.” (Emphasis in original). PI. ex. F. Plaintiff argues that “Cox should have reasonably felt that Ms. Roman was complaining about sexual or racial harassment.” PI. Mem. of Law, at 17. Harassment can be many things and the use of that term does not automatically implicate Title VII. The e-mail itself does not indicate that plaintiff believed defendants were engaged in unlawful employment practices. Plaintiff also alleges in her memorandum of law that her December 6, 1994 grievance challenging the English-only instruction constitutes protected activity. Plaintiffs grievance letter makes no reference to discrimination or improper employment practices. See Def.Ex. T. Nevertheless, drawing all reasonable inferences in plaintiffs favor, the Court' concludes that these instances are sufficient to satisfy her de" }, { "docid": "22033297", "title": "", "text": "required to show a prima facie case were easily proved by Reed: (1) Lawrence was aware that the plaintiff was complaining about a coworker’s allegedly unlawful conduct — by complaining to an officer of the company, Rita Harfield, and maintaining her complaint during the subsequent internal investigation of the matter, the plaintiff was in effect communicating her concerns about Infantino’s comments to Lawrence; (2) Reed suffered an adverse employment decision — she was fired; and (3) the causal connection— which “can be established indirectly by showing that the protected activity was closely followed in time by the adverse action,” Manoharan, 842 F.2d at 593 — was shown in this ease by, among other things, evidence that the time between the plaintiff’s initial complaint and her discharge was a mere twelve days. The one remaining factor — whether the plaintiff was engaged in “protected activity” when she complained about Infantino’s alleged unlawful conduct — is the focus of this appeal. The defendant argues that the plaintiff did not present a prima facie case of retaliation because she failed to demonstrate that her complaint constituted “protected activity”— that is, opposition to an unlawful employment practice. The defendant presses two arguments in support of this claim: (1) The plaintiff could not have had a reasonable good faith belief that Infantino’s comment constituted an unlawful employment practice and therefore, her complaint was not protected opposition; and (2) Infantino’s comment cannot, as a matter of law, be considered an unlawful act by the plaintiffs employer. a. Good Faith, Reasonable Belief The defendant’s argument that Infantino’s comment cannot be considered an unlawful employment practice highlights a recurring theme in retaliation cases: an employee “need not establish that the conduct [s]he opposed was in fact a violation of Title VII,” but rather, only that she had a “good faith, reasonable belief’ that the underlying employment practice was unlawful. Manoharan 842 F.2d at 593 (holding that to prove that she was engaged in “protected activity,” an employee need only have a “good faith reasonable belief that the underlying challenged actions of the employer violated the law”); see also" }, { "docid": "6098613", "title": "", "text": "that Baschiera’s comments did not sustain Kodengada’s hostile environment claim, Kodengada’s complaints about those comments were protected activity. See Reed, 95 F.3d at 1178. “An employee need not establish that the conduct [he] opposed was in fact a violation of Title VII, but rather, only that [he] had a good faith, reasonable belief that the underlying employment practice was unlawful.” Id.; see also Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (“[P]laintiff must demonstrate a “good faith, reasonable belief’ that the underlying challenged actions of the employer violated the law.”). In determining whether a plaintiffs belief was reasonable, a court must take into account plaintiffs subjective sensibilities. Reed, 95 F.3d at 1179. Kodengada is an immigrant from India and a Hindu. Bas-chiera’s comments concerned his unfavorable attitudes towards immigrants, a religious group and another racial group. On the record before this Court, we cannot say that Kodengada did not reasonably and in good faith believe when he complained to his supervisor and Human Resources, that he was the victim of a hostile work environment. Although plaintiff has satisfied the first three requirement of stating a prima facie case, defendant must prevail on summary judgment with respect to the retaliation claim because plaintiff has failed to meet the fourth requirement. Plaintiff has not shown a causal connection between the protected activity and the adverse employment action, which occurred several months after the protected speech. See Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir.1990). “Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Quinn, 159 F.3d at 769 (discharge that occurred less than two months after plaintiff filed an internal discrimination complaint and only 10 days after she filed a complaint with New York Division of Human Rights established close temporal relation between protected activity and discharge) (internal quotations omitted); see also Manoharan, 842 F.2d at 593; Stringfellow v. Wyckoff Heights Med. Ctr., No. 95 Civ. 3041(ILG), 1998 WL 760286, at *6 (E.D.N.Y. Sep.9, 1998) (plaintiff did" }, { "docid": "22071515", "title": "", "text": "Accordingly, we agree with the district court that the evidence was insufficient as a matter of law to support the claim that Am-brosini was a victim of discrimination on the basis of her gender. C. The Sufficiency of the Evidence of Prohibited Retaliation Title VII also provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). The “objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter’s opposition to an unlawful employment practice.”- Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d at 593. To establish a prima facie ease of retaliation under Title VII, a plaintiff must show (1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3).that she suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action. Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996). With respect to the first element, participation in protected activity, the plaintiff need not establish that the conduct she opposed was actually a violation of Title VII, but only that she possessed a “good faith, reasonable belief that the underlying employment practice was unlawful” under that statute. Id. (internal quotation marks omitted); see also Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d at 593. The reasonableness of the plaintiffs.belief is to be assessed in light of the totality of the circumstances. Reed v. A.W. Lawrence & Co., 95 F.3d at 1178. As to the second element, implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII. In the present case, assuming that Ambrosini genuinely believed herself to be the victim of" }, { "docid": "16982753", "title": "", "text": "the evidence that the proffered legitimate reason is merely a pretext for impermissible retaliation / discrimination. See id. at 804; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). a. Prima Facie Case To establish a prima facie case for retaliation, a plaintiff must show that (1) the employee was engaged in protected activity, or is a part of a protected class, and the employer was aware of that activity or class status; (2) the employee was qualified for the position; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the ad-vei-se employment action. Gregory v. Daly, 243 F.3d 687, 700 (2d Cir.2001), quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996); Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir.2000); McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817. The first of these elements— participation in a protected activity—Plaintiff need not prove that the conditions against which he protested actually amounted to a violation. See Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). Rather, Plaintiff must demonstrate only that he had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Manoharan, 842 F.2d at 593 (quotation omitted). In this case, Plaintiff, an African-American, alleges that he was fired as a result of his comments that African-Americans were under-represented in employment in Zone 3. There can be no doubt that Plaintiffs complaints to management regarding the racial make-up of the Zone 3 workforce is a protected activity. See Matima v. Celli, 228 F.3d 68, 78 (2d Cir.2000) (“The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management.”) (internal quotation marks omitted). Second, there is no evidence to suggest that Plaintiff was not qualified to be an engineer and that he satisfactorily performed his duties. Additionally, suspension and termination from employment obviously qualify as" }, { "docid": "16039916", "title": "", "text": "the defendant meets this burden, the plaintiff must demonstrate that the defendant’s explanations are a pretext for impermissible retaliation. See Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir.1998). In order to survive a motion for summary judgment, plaintiff must establish a genuine issue of material fact as to whether the employer’s reason for discharging her is false pretext and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision. DeMars v. O’Flynn, 287 F.Supp.2d 230, 243-44 (W.D.N.Y.2003) Protected activities under Title VII fall into two categories: opposition and participation. An employee engages in a protected activity when she has (1) “opposed any practice made an unlawful employment practice” by Title VII, or (2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). In regard to the first category, - the plaintiff need not show that the conduct she opposed was actually a violation of Title VII, but only that she possessed a good faith reasonable belief that the underlying employment practice was unlawful under Title VII. Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). Thus, it is possible for an employee reasonably to believe that specified conduct amounts to discrimination, even if that conduct actually would not qualify as discrimination under the law. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998). The Court must assess the reasonableness of the plaintiffs belief in light of the totality of circumstances. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). Defendants impermissibly retaliate in violation of Title VII when a retaliatory motive plays a part in an adverse employment action, “whether or not it was the sole cause [and] even if valid objective reasons for the discharge exist.” Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1038 (2d Cir.1993). Proof of a causal connection can be proven indirectly by showing that the protected activity was followed closely by discriminatory treatment," }, { "docid": "6098612", "title": "", "text": "Plaintiff claims that he was fired because he complained to DeRobertis and the Human Resources Department about Baschiera’s racist remarks. Specifically, plaintiff asserts that the protected activity includes the November 3, 1996 e-mail that Kodengada sent to Baschiera and then forwarded to DeRobertis. Defendant claims, however, that these complaints of discrimination had nothing to do with Ko-dengada’s firing. Rather, defendants assert that he was discharged because of his repeated inappropriate behavior towards women, and problems in his job performance. Defendants specifically point to the three incidents that occurred from March 25 to April 1, the week before Kodengada’s firing. Plaintiff satisfies the first three requirements for establishing a prima facie case of retaliation. The requirements'most easily satisfied are (2), that the defendant was aware of Kodengada’s protected activity, because the complaints were made to his supervisor and Human Resources; and (3) because defendant suffered an adverse employment action when he was fired. Requirement (1), that defendant engage in protected activity, i.e. opposition to an unlawful employment practice, is also satisfied. Although this Court has found that Baschiera’s comments did not sustain Kodengada’s hostile environment claim, Kodengada’s complaints about those comments were protected activity. See Reed, 95 F.3d at 1178. “An employee need not establish that the conduct [he] opposed was in fact a violation of Title VII, but rather, only that [he] had a good faith, reasonable belief that the underlying employment practice was unlawful.” Id.; see also Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (“[P]laintiff must demonstrate a “good faith, reasonable belief’ that the underlying challenged actions of the employer violated the law.”). In determining whether a plaintiffs belief was reasonable, a court must take into account plaintiffs subjective sensibilities. Reed, 95 F.3d at 1179. Kodengada is an immigrant from India and a Hindu. Bas-chiera’s comments concerned his unfavorable attitudes towards immigrants, a religious group and another racial group. On the record before this Court, we cannot say that Kodengada did not reasonably and in good faith believe when he complained to his supervisor and Human Resources, that he was the" }, { "docid": "9476682", "title": "", "text": "While this test does shift the burden of production once a plaintiff has established a prima facie case, the burden of persuasion remains upon the plaintiff at all times. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Title VII also provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful practice by this subchapter_” 42 U.S.C. § 2000e-3(a). As the Second Circuit has noted, “[t]he objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter’s opposition to an unlawful employment practice.” Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). To establish a claim for retaliation pursuant to Title VII, a plaintiff need not prove that her discrimination claim was valid in the first instance. A prima facie case of retaliation under Title VII requires a showing that (1) the employee was engaged in an activity protected under Title VII; (2) the employer was aware of the plaintiffs participation in the protected activity; (3) an employment action disadvantaged the plaintiff; and (4) there was a causal connection between the employee’s protected activity and the adverse action taken by the employer. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993); Burrell, 894 F.Supp. at 760. The requisite causal connection may be established “indirectly by showing that the protected activity was closely followed in time by the adverse action.” Manoharan, 842 F.2d at 593 (citing Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986)). If a plaintiff makes such a showing, the burden then shifts to the defendant to articulate some legitimate, non-discriminatory reason for its actions. See Tomka, 66 F.3d at 1308. If the defendant carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were merely a pretext for retaliation. See Tomka," }, { "docid": "17048695", "title": "", "text": "is “in response to the claimant’s assertion of rights that were protected by Section 1981.” Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998). Here, Cruse alleges that the thirty-day warning in February of 1998 and her subsequent termination were in retaliation for the remarks she made in her June 1997 self-evaluation concerning her level of compensation and duties. This claim is fatally flawed. To make out a prima facie case of retaliation, Cruse must prove that: (1) she was engaged in protected activity; (2) her employer was aware of that activity; (3) she suffered an adverse employment action; and (4) there was a causal link between the protected activity and the adverse employment action. See Reed v. A.W. Lawrence and Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996) (citing Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Cruse cannot establish that she engaged in any statutorily protected activity because she conceded in her deposition that she never complained to anyone at G & J that she believed she was a victim of race discrimination. Cruse Dep. at 142-43. Even if Cruse’s complaint about her salary could somehow be construed as statutorily protected, she has failed to proffer any evidence that the decision to terminate her was causally linked to this complaint. Cruse Dep. at 120-21. Moreover, the passage of more than six months from the date Cruse complained about her level of compensation to the date of the warning refutes any causal link. Cf. Manoharan, 842 F.2d at 593 (“Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.”). Accordingly, plaintiffs retaliation claim must also be dismissed. D. Plaintiffs Termination Claim 1. Legal Standard for Discriminatory Termination Under the McDonnell Douglas framework applicable to plaintiffs § 1981 and New York Human Rights Law claims, see infra, a plaintiff must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff meets this burden, the employer must" }, { "docid": "16000247", "title": "", "text": "the time.” Poulsen v. City of North Tonawanda, 811 F.Supp. 884, 898 (S.D.N.Y.1993). For the reasons set forth above, qualified immunity is appropriate in this case. VI. The Retaliation Claim The ADA prohibits retaliation against an employee who has engaged in statutorily protected activity: No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. 42 U.S.C. § 12203(a). To establish a prima facie retaliation claim under the ADA, a plaintiff must show that: (1) he was engaged in a protected activity; (2) he suffered an employment action disadvantaging him; and (3) there was a causal connection between the protected activity and the adverse employment action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (quoting Tomka, 66 F.3d at 1308); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996). Retaliation claims under the ADA are subject to the same three-tiered burden shifting analysis established in McDonnell Douglas. See Quinn, 159 F.3d at 768. Plaintiff bears the initial burden of establishing a prima facie case of retaliation by a preponderance of the evidence. If plaintiff meets this initial burden of establishing a prima facie case, defendant must then articulate a legitimate, non-retaliatory reason for the complained action. If defendant meets its burden, plaintiff must then present evidence sufficient to show that defendant’s proffered reason was merely a pretext for impermissible retaliation. See Quinn, 159 F.3d at 768-69; Tomka, 66 F.3d at 1308-09. With respect to the first prong, in order to prove that Menes engaged in a protected activity, he “need not establish that the conduct he opposed was in fact a violation of the [ADA],” but only that he possessed a “good faith, reasonable belief that the underlying employment practice was unlawful.” Manoharan v. Columbia Univ. College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (citation omitted). Here, Menes engaged in a protected activity by filing a" }, { "docid": "5793575", "title": "", "text": "made an unlawful employment practice by [Title VII].” To establish a prima facie ' ease for retaliation, a plaintiff must show (1) she was engaged in a protected activity; (2) the employer was aware of that activity; (3) plaintiff suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996); Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988); Castro v. Local 1199, Nat’l Health and Human Services Employees Union, 964 F.Supp. 719, 729 (S.D.N.Y.1997). A “protected activity” includes the registering of a complaint of a Title VII violation, which “need not take the form of a formal claim filed with a court or administrative agency ... [but] may simply be an objection voiced to the employer.” Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403, 410 (S.D.N.Y.1996); see Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989). A plaintiff need not establish that the conduct she opposed was in fact a violation of Title VII, but must establish that she had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d at 593. As explained in Little v. United Technologies, 103 F.3d 956 (11th Cir.1997); It is critical to emphasize that a plaintiff’s burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable. 103 F.3d at 960 (emphasis in original) See also Reed v. A.W. Lawrence & Co., Inc., 95 F.3d at" }, { "docid": "5939439", "title": "", "text": "to 42 U.S.C. § 2000e~3 are also subject to the familiar McDonnell Douglas burden-shifting analysis described above. See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980). “To establish a prima facie case of retaliation, an employee must show ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’ ” Wimmer, 176 F.3d 125, 134 (quoting Quinn, 159 F.3d 759, 769 (2d Cir.1998)). Courts have held that the plaintiffs burden at this stage is slight, and “[a plaintiff] may establish a prima facie case with de minimis evidence.” Wanamaker, 108 F.3d at 465 (analyzing retaliation claim under the ADEA) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988)); see also Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d Cir.1996), cert. denied, 519 U.S. 1150, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997). “To establish the first of these elements — participation in a protected activity — plaintiff need not prove that the conditions against which he protested actually amounted to a violation of Title VII.” Wimmer, 176 F.3d 125, 134; see also Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986). Rather, plaintiff must demonstrate “only that he had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Wimmer, 176 F.3d 125, 134 (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Plaintiffs reporting of Greene’s alleged racial slur constitutes protected activity. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990) (“In addition to protecting the filing of formal charges of discrimination, [Title VII] protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.”); Stordeur v. Computer Assocs. Int’l, Inc., 995 F.Supp. 94, 105 (S.D.N.Y.1998); Barcher v. New York" }, { "docid": "14153136", "title": "", "text": "509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). See Quinn v. Green Tree Credit Corporation, 159 F.3d 759, 768 (2d Cir.1998). Plaintiff bears the initial burden of establishing a prima facie case of retaliation by a preponderance of the evidence. If plaintiff meets this initial burden of establishing a prima facie case, defendant must then articulate a legitimate, non-retaliatory reason for the complained action. If defendant meets its burden, plaintiff must then present evidence sufficient to show that defendant’s proffered reason was merely a pretext for impermissible retaliation. See Quinn, 159 F.3d at 768-69; Tomka v. Seiler Corp., 66 F.3d 1295, 1308-09 (2d Cir.1995). To establish a prima facie retaliation claim under the ADA, a plaintiff must show that: (1) he was engaged in a protected activity; (2) he suffered an employment action disadvantaging him; and (3) there was a causal connection between the protected activity and the adverse employment action.' Quinn, 159 F.3d at 769 (quoting Tomka, 66 F.3d at 1308); see Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996). A causal connection “can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Manoharan v. Columbia Univ. College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (citing Davis v. State Univ. Of NY, 802 F.2d 638, 642 (2d Cir.1986)). With respect to the first prong, in order to prove that plaintiff engaged in a protected activity, he “need not establish that the conduct he opposed was in fact a violation of the [ADA],” but only that he possessed a “good faith, reasonable belief that the underlying employment practice was unlawful.” Manoharan, 842 F.2d at 593 (citation omitted). Here, plaintiff engaged in a protected activity by filing a discrimination charge with the EEOC pri- or to his discharge. See Hawkins v. Astor Home for Children, No. 96 Civ. 8778(SS), 1998 WL 142134, at *10 (S.D.N.Y. March 25, 1998) (filing of EEOC charge is a protected activity). Furthermore, the second prong — that the employer took an adverse employment action disadvantaging plaintiff" }, { "docid": "23178633", "title": "", "text": "his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. ... 42 U.S.C. § 2000e-2(a)(l). The district court’s grant of judgment as a matter of law on the Title VII claim at the close of Wimmer’s case was based on its determination that Wimmer had presented insufficient evidence to establish a prima facie case of retaliation. “To establish a prima facie case of retaliation, an employee must show ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’ ” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995)). To establish the first of these elements—participation in a protected activity—Wimmer need not prove that the conditions against which he protested actually amounted to a violation of Title VII. See id. (citing Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Rather, Wimmer must demonstrate only that he had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Manoharan, 842 F.2d at 593 (quotation omitted). We agree with the district court that Wimmer failed to establish that he was engaged in a protected activity. Wim-mer’s theory of recovery is that he was given poor evaluations and eventually terminated for having reported overhearing racial slurs made by police officers against black citizens and perhaps for questioning Officer Hodge’s two stops of minority (Hispanic) motorists without cause. There is no claim that any of this activity was directed at Wimmer or any of his co-employees. The precise issue presented, whether a complaint of retaliation for opposing discrimination by co-employees against non-employees is cognizable under Title VII, is one of first impression in this Circuit. Several other circuits, however, have addressed analogous circumstances. The case most closely on point is Crowley v. Prince George’s County, 890 F.2d 683 (4th Cir.1989). In Crowley, a white male sued his former" }, { "docid": "16000248", "title": "", "text": "are subject to the same three-tiered burden shifting analysis established in McDonnell Douglas. See Quinn, 159 F.3d at 768. Plaintiff bears the initial burden of establishing a prima facie case of retaliation by a preponderance of the evidence. If plaintiff meets this initial burden of establishing a prima facie case, defendant must then articulate a legitimate, non-retaliatory reason for the complained action. If defendant meets its burden, plaintiff must then present evidence sufficient to show that defendant’s proffered reason was merely a pretext for impermissible retaliation. See Quinn, 159 F.3d at 768-69; Tomka, 66 F.3d at 1308-09. With respect to the first prong, in order to prove that Menes engaged in a protected activity, he “need not establish that the conduct he opposed was in fact a violation of the [ADA],” but only that he possessed a “good faith, reasonable belief that the underlying employment practice was unlawful.” Manoharan v. Columbia Univ. College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (citation omitted). Here, Menes engaged in a protected activity by filing a discrimination charge with the EEOC on July 30, 1996. See Hawkins v. Astor Home for Children, No. 96 Civ. 8778(SS), 1998 WL 142134, at *10 (S.D.N.Y. March 25, 1998) (filing of EEOC charge is a protected activity). Furthermore, the second prong — that the employer took an adverse employment action disadvantaging Menes — is satisfied by CUNY’s termination of his employment. See Quinn, 159 F.3d at 769. With respect to the third prong, a causal connection “can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Manoharan, 842 F.2d at 593 (citing Davis v. State Univ. Of NY, 802 F.2d 638, 642 (2d Cir.1986)); see also Valentine v. Standard & Poor’s, 50 F.Supp.2d 262, 290 (S.D.N.Y.1999) (causal nexus established where plaintiff was fired less than two months after filing his charge with the EEOC). In the present case, Menes’s termination occurred almost four months after he filed the EEOC charge. He alleges that in retaliation for filing the EEOC complaint, Defendants treated him in a discriminatory" }, { "docid": "1207417", "title": "", "text": "warning in July 2004 and suspended her for three days without pay in September 2004 for poor attendance. Title VII’s anti-retaliation provision forbids employer actions that “discriminate against” an employee because the employee has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a); Burlington Northern & Santa Fe Ry. v. White, - U.S. -, 126 S.Ct. 2405, 2410, 165 L.Ed.2d 345 (2006). The McDonnell Douglas burden-shifting analysis used in claims of discrimination in violation of Title VII also applies to retaliation claims brought pursuant to Title VII. Terry v. Ashcroft, 336 F.3d at 141. To make out a prima facie case of retaliation, Bush must present sufficient evidence to permit a rational trier of fact to find that (1) she engaged in protected participation under Title VII; (2) Fordham knew of this activity; (3) Fordham took adverse action against Bush; and (4) “a causal connection exists between the protected activity and the adverse action, meaning that a retaliatory motive played a part in the adverse employment action.” See Cifra v. Gen. El. Co., 252 F.3d 205, 216 (2d Cir.2001) (internal quotation marks omitted); see also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005); Terry v. Ashcroft, 336 F.3d at 141; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998). To prove that she engaged in protected activity, Bush need not establish that the conduct she opposed was in fact a violation of Title VIL Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 598 (2d Cir.1988); see also Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir.1986). However, she must demonstrate a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). Bush engaged in protected activity of which Fordham was aware when she filed her EEOC charges and filed her lawsuit. See Richardson, 180 F.3d at 443; Gallagher v. Delaney," }, { "docid": "6263613", "title": "", "text": "blouse at a party and went drinking with some students. However, plaintiff spends little time addressing this claim in her submissions to the Court. The standards discussed above with respect to a racially hostile work environment similarly apply to claims of a sex-based hostile work environment. See discussion supra at 242. Upon reviewing the totality of the circumstances, the Court concludes that no fair-minded jury could find that plaintiff was the victim of a hostile work environment on account of her gender. No reasonable person would perceive plaintiffs allegations as hostile or abusive. Similarly, none of Poux’s alleged comments, even if true, unreasonably interfered with the performance of plaintiff’s work. See Leopold, 174 F.3d 261, 267-68. The alleged incidents were isolated and sporadic and were not sufficiently severe or pervasive to alter the terms or conditions of plaintiffs work environment. Thus, plaintiff cannot, as a matter of law, sustain a claim that she was discharged because of her sex and her claim of sex discrimination must be dismissed. 3. Retaliation Defendants next move for summary judgment dismissing plaintiffs claim of retaliation. Retaliation claims pursuant to 42 U.S.C. § 2000e-3 are subject to the familiar McDonnell Douglas burden shifting analysis previously described. See discussion supra at 234. To establish a prima facie case of retaliation, plaintiff must demonstrate that the employee was engaged in protected activity, that the employer was aware of that activity, that the employee suffered adverse employment decisions, and that there was a causal connection between the protected activity and the adverse employment action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769; Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). a. Whether Plaintiff Engaged In Protected Activity “To prove that [s]he engaged in protected activity, the plaintiff need not estabbsh that the conduct [s]he opposed was in fact a violation of Title VII.” Manoharan, 842 F.2d at 593 (citing Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986)). “However, the plaintiff must demonstrate a ‘good faith, reasonable belief that the underlying challenged actions of" }, { "docid": "20452776", "title": "", "text": "under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (quotation marks omitted). To make out a prima facie case of retaliation, a plaintiff must demonstrate that “(1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012). An employee’s complaint may qualify as protected activity, satisfying the first element of this test, “so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Gregory v. Daly, 243 F.3d 687, 701 (2d Cir.2001) (quotation marks omitted). And not just any law—the plaintiff is “required to have had a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VIL” McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir.2001); see also id. (vacating summary judgment where plaintiffs “belief that [defendant’s] alleged sexual harassment violated Title VII was reasonable”). “The reasonableness of the plaintiffs belief is to be assessed in light of the totality of the circumstances.” Galdieri-Ambrosini, 136 F.3d at 292. A plaintiffs belief on this point is not reasonable simply because he or she complains of something that appears to be discrimination in some form. For example, when a hospital administrator asserted that he had been terminated after complaining that a white employee had been “chosen over qualified black and other minority applicants,” we held that the administrator failed to make out a prima facie case because his “objections at the time neither pointed out discrimination against particular individuals nor discriminatory practices by [the employer]” and were thus “directed at something that, as it was alleged, is not properly within the definition of an ‘unlawful employment practice.’ ” Manoharan v. Columbia Univ. Coll, of Physicians & Surgeons, 842 F.2d 590, 593-94 (2d Cir.1988) (quoting 42 U.S.C. § 2000e-2 (j) (1982)). Similarly," }, { "docid": "5793574", "title": "", "text": "him and therefore lodged her complaint before any adverse action had actually occurred. Plaintiff’s theory is premised on the misapprehension that this implicit threat of an adverse decision could give rise to a cause of action for sexual harassment. See Watts v. New York City Police Dept., 724 F.Supp. 99, 104 (S.D.N.Y.1989). Plaintiff furthermore confirms in her exegesis of her complaint that her claim is that Dorsen “did not select me because I complained.” Thus, her first claim is simply that which she seeks to advance as a second claim, that her rejection for the position was in retaliation for her having exercised her right to complain about Dorsen’s being the supervisor of the program rather than her having objected to some unwelcome sexual conduct. For the above reasons, plaintiff’s first claim should be dismissed. 3. The Retaliation Claim Under Section 704(a) of Title VII, as amended, 42 U.S.C. § 2000e-3(a), it is unlawful “for an employer to discriminate against any of its employees or applicants for employment '... because [they have] opposed any practice made an unlawful employment practice by [Title VII].” To establish a prima facie ' ease for retaliation, a plaintiff must show (1) she was engaged in a protected activity; (2) the employer was aware of that activity; (3) plaintiff suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996); Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988); Castro v. Local 1199, Nat’l Health and Human Services Employees Union, 964 F.Supp. 719, 729 (S.D.N.Y.1997). A “protected activity” includes the registering of a complaint of a Title VII violation, which “need not take the form of a formal claim filed with a court or administrative agency ... [but] may simply be an objection voiced to the employer.” Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403, 410 (S.D.N.Y.1996); see Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989). A plaintiff need not establish that" }, { "docid": "6512696", "title": "", "text": "and (3) if the defendant meets its burden, plaintiff must adduce evidence sufficient to raise a fact issue as to whether the defendant’s reason was merely a pretext for retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764, 768-69 (2d Cir.1998) (citing Reed, 95 F.3d at 1177). To establish a prima facie case of such retaliation, the plaintiff must show: (1) participation in a protected activity and defendant’s knowledge of the protected activity; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. See McMenemy, 241 F.3d at 283 (citing Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir.2000)). MCNY argues that Middleton has failed to establish a prima facie case of retaliation because she has not demonstrated participation in a protected activity or a causal connection between the alleged protected activity and her termination. The Court agrees. A. PARTICIPATION IN A PROTECTED ACTIVITY To prove participation in a protected activity, a plaintiff need only demonstrate that she had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law,” not that the employer’s conduct actually violated the law. Quinn, 159 F.3d at 769 (citing Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). The reasonableness of a plaintiffs belief is assessed in light of the totality of the circumstances. See Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998) (citing Reed, 95 F.3d at 1178). An employee’s belief that she was opposing an unlawful employment practice must also be objectively reasonable, in the sense that the asserted opposition must be grounded on sufficient evidence that the employee was the subject of discrimination and harassment at the time the protest to the offending conduct is registered. See Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 135-36 (2d Cir.1999). As proper context, it bears noting that sexual harassment claims under NYSHRL and NYCHRL are analyzed under the same standards of proof as that of Title VII, and thus," } ]

[ { "docid": "16176360", "title": "", "text": "all that is required. We think that United States v. Log, 191 F.3d 360 (3rd Cir.1999), cert. denied, — U.S.-, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000), on which Mr. Tellez places a great deal of reliance, is distinguishable. In Loy, 191 F.3d at 363, the police sent child pornography to the defendant’s post office box and obtained an anticipatory warrant to search the defendant’s home when the defendant received the pornography at his box. The court found that the anticipatory warrant was invalid because there was no evidence of a nexus between the defendant’s home and the receipt of the pornography at the post office. Id. at 366-67. In fact, the defendant rented storage space in a commercial facility and had indicated to an undercover officer that that was where he kept his child pornography. Id. at 366. We agree, of course, that there must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue, see United States v. Koelling, 992 F.2d 817, 823 (8th Cir.1993). For the reasons already indicated, however, we think that the circumstances of our case provide sufficient evidence of this nexus, even without the occurrence of the condition. We think that the discovery of drugs on Mr. Tellez shortly after leaving his home in response to an order placed by a customer certainly contributes to a finding of probable cause, but was not necessary to uphold the warrant. We note in passing that Mr. Tellez has correctly pointed out that several of the facts recited by the government in its brief occurred after the warrant had issued, and were therefore irrelevant to the determination of whether, “based on facts existing when the warrant is issued ... there is probable cause to believe [that] the contraband ... will be [at the place to be searched] ... when the warrant is executed.” Loy, 191 F.3d at 365. This point notwithstanding, however, we think that the facts set forth in the affidavit provided sufficient grounds for the magistrate to find that a fair probability existed that narcotics" } ]

[ { "docid": "2197831", "title": "", "text": "materials would be delivered to address where warrant was executed). Yet, in light of Anderson, we cannot conclude that the district court erred in concluding that, if Doyle actually possessed child pornography, it was reasonable to assume that Doyle kept it at his house. There is, however, remarkably scant evidence in the affidavit (or Rouse’s investigation summary) to support a belief that Doyle in fact possessed child pornography. The bulk of the information supplied in the affidavit concerned allegations of sexual assault. But evidence of child molestation alone does not support probable cause to search for child pornography. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir.2008) (“[I]t is beyond dispute that the warrant was defective for lack of probable cause-Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial.”); see also United States v. Falso, 544 F.3d 110, 124 (2d Cir.2008) (“[Although Falso’s crime allegedly involved the sexual abuse of a minor, it did not relate to child pornography. That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”) (citation omitted). Here, the only mention in the warrant application regarding the presence of pornography was the statement that one of the alleged victims “disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” Doyle argues that the warrant lacked sufficient indicia of the credibility of Jones, the only informant who mentioned the presence of nude photographs. “In order to establish probable cause for the issuance of a search warrant, it is necessary to show that ‘given all the circumstances set forth in the affidavit[,] ... including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Legg, 18 F.3d at 243 (quoting Illinois v. Gates," }, { "docid": "2961262", "title": "", "text": "children. But that distinction seems to be in tension both with common experience and a fluid, non-technical conception of probable cause. See Gates, 462 U.S. at 230-32, 103 S.Ct. 2317. Evidence adduced to support probable cause must be “weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id. at 232, 103 S.Ct. 2317 (internal quotation omitted). The probable cause analysis is “not readily, or even usefully, reduced to a neat set of legal rules.” Id. There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children. See, e.g., United States v. Paton, 535 F.3d 829, 836 (8th Cir.2008). For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may very well be a logical precursor to physical interaction with a child: the relative ease with which child pornography may be obtained on the internet might make it a simpler and less detectable way of satisfying pedophilic desires. Cf. United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994) (“[C]ommon sense would indicate that a person who is sexually interested in children is likely to also be inclined, i.e., predisposed, to order and receive child pornography.”). Accordingly, we conclude that Colbert’s attempt to entice a child was a factor that the judicial officer reasonably could have considered in determining whether Colbert likely possessed child pornography, all the more so in light of the evidence that Colbert heightened the allure of his attempted inveiglement by telling the child that he had movies she would like to watch. That information established a direct link to Colbert’s apartment and raised a fair question as to the nature of the materials to which he had referred. Although the return on the warrant does not list the titles of the children’s movies found in his apartment, it would strain credulity" }, { "docid": "16106563", "title": "", "text": "for child pornography. The Second Circuit has stated that a “crime allegedly involving] the sexual abuse of a minor, [does] not relate to child pornography.... That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.” United States v. Falso, 544 F.3d 110, 123 (2d Cir.2008). The Sixth Circuit agrees that, when probable cause is established “for one crime (child molestation) but [the warrant is] designed and requested [to] search for evidence of an entirely different crime (child pornography),” it is “beyond dispute that the warrant [i]s defective.” United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008). In fact, in Hodson, the evidence was much more related to viewing children in sex acts and to computers than the evidence in the affidavit here. There, in an internet chatroom, Hodson “confided that he ... favored young boys, liked looking at his nine-and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew. [Hodson] also expressed his desire to perform oral sex on the presumptive twelve-year-old boy ... and his willingness to travel ... to do so.” Id. at 287. Nonetheless, the Sixth Circuit firmly held that the warrant was “so lacking in indicia of probable cause that” not even the good-faith exception to unlawfully executed warrants could apply. Id. at 292-93. The Eighth Circuit, however, has rejected the reasoning of Falso and Hodson, stating “[t]here is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.” United States v. Colbert, 605 F.3d 573, 578 (8th Cir.2010). The affidavit in Colbert, however, did include evidence that the accused had enticed a child to come to his apartment. Id. at 577. Ultimately, the question of probable cause is “not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317. Thus, while the “totality of circumstances” could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewicz’s conclusory statement tying this “subject,” alleged to have molested two children and looked inappropriately" }, { "docid": "3947195", "title": "", "text": "child pornography possession). But at least one circuit has held that a warrant to search for evidence of child pornography was supported by sufficient probable cause where it was based on a common-sense determination that those who abuse children are also likely to possess child pornography. In United States v. Colbert, the Eighth Circuit considered whether probable cause justified a search for child pornography where the affidavit alleged that the defendant had attempted to lure a five-year-old girl to his apartment by claiming that he had “movies for her to watch.” 605 F.3d 573, 576-77 (8th Cir. 2010) (noting that “[determining whether probable cause exists requires a commonsense analysis of the facts available to the judicial officer who issued the warrant”). The Court upheld the district court, recognizing that “individuals sexually interested in children frequently utilize child pornography to reduce the inhibitions of their victims” and that “sexual depictions of minors could be logically related to the crime of child enticement,” particularly given the defendant’s specific reference to movies and videos. Id. Thus, Colbert held the search warrant affidavit was sufficient to provide probable cause. Id. at 579; see also United States v. Byrd,, 31 F.3d 1329, 1339 (5th Cir.1994) (explaining in the context of an entrapment defense and as to evidence sufficient to support a jury’s conviction, rather than in a probable cause inquiry, that “common sense would indicate that a person who is sexually interested in children is likely to also be inclined, i.e., predisposed, to order and receive child pornography”). Here, the affidavit provides significantly less. Neither his posting of child erotica nor his comments suggesting a sexual attraction to the child in the posted images established probable cause that Mr. Edwards possessed child pornography in his home. Similarly, the fact that child pornography collectors also collect child erotica, participate in certain online forums relating to child erotica, and share other common characteristics does not support an inverse conclusion that possessors of child erotica and participants in such online forums are also collectors of child pornography. Cf. Jacobson, 503 U.S. at 551-52, 112 S.Ct. 1535 (discussing defendant’s" }, { "docid": "2961261", "title": "", "text": "to entice a child. See Falso, 544 F.3d at 114 (stat ing that the evidence of defendant’s prior sexual abuse was approximately eighteen years old); Hodson, 543 F.3d at 287 (noting that the warrant application was prepared almost three months after the internet chat that gave rise to the search). And neither case involved an application to search the exact location of the relevant sex crime. Here, in contrast, law enforcement officers drafted the search warrant as an immediate response to Colbert’s attempted enticement. The officers executed the warrant on the same day that Colbert approached the child at the park, and they focused their search on the very place where Colbert had expressed a desire to be alone with a five-year-old girl. Moreover, to the extent that Hod-son and Falso suggest that evidence of a defendant’s tendency to sexually abuse or exploit children is irrelevant to the probable cause analysis, we respectfully disagree. Both courts based their conclusions on a categorical distinction between possession of child pornography and other types of sexual exploitation of children. But that distinction seems to be in tension both with common experience and a fluid, non-technical conception of probable cause. See Gates, 462 U.S. at 230-32, 103 S.Ct. 2317. Evidence adduced to support probable cause must be “weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id. at 232, 103 S.Ct. 2317 (internal quotation omitted). The probable cause analysis is “not readily, or even usefully, reduced to a neat set of legal rules.” Id. There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children. See, e.g., United States v. Paton, 535 F.3d 829, 836 (8th Cir.2008). For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may very well be a logical precursor to physical interaction with" }, { "docid": "3947193", "title": "", "text": "found upon execution of a warrant to search the defendant’s home. Writing for the panel on appeal, then-Judge Sotomayor identified the same logical fallacy in the district court’s analysis as found in the decisions of the magistrate judge and district court here: “ ‘It is an inferential fallacy of ancient standing to conclude that, because members of group A’ (those who collect child pornography) ‘are likely to be members of group B’ (those attracted to children), ‘then group B is entirely, or even largely composed of, members of group A.’ ” Id. (quoting Martin, 426 F.3d at 82 (Pooler, J., dissenting)). The Falso Court ultimately found the defendant’s history of child sexual abuse to be stale. Id. at 123. It then held that “[although offenses relating to child pornography and sexual abuse of minors both involve the exploitation of children, that does not compel, or even suggest, the correlation drawn by the district court.” Id. at 122. “Perhaps it is true,” reasoned Judge Sotomayor, “that all or most people who are attracted to children collect child pornography.” Id. But, as with the warrant affidavit here, “that association [was] nowhere stated or supported in the affidavit.” Id. Although she acknowledged that “the district court undoubtedly had the safety of the public in mind,” Judge Sotomayor cautioned that “an individual’s Fourth Amendment right cannot be vitiated based on fallacious inferences drawn from facts not supported by the affidavit.” Id.; see, e.g., Virgin Islands v. John, 654 F.3d 412, 418-19 (3d Cir.2011) (holding that evidence showing a person has sexually assaulted a child could not establish probable cause to search for child pornography where the search warrant did not allege that child molesters are also likely to have child pornography); United States v. Hodson, 543 F.3d 286, 292 (6th Cir.2008) (holding that a search for child pornography was not supported by probable cause where the affidavit was based on the defendant’s online confession to an undercover officer that he had an attraction to children and had sexually molested a seven-year-old boy, but the affidavit lacked expert information about the relationship between molestation and" }, { "docid": "21348261", "title": "", "text": "Id. at 434-35. Zimmerman is inapposite. In Zimmerman there was no evidence the defendant possessed child pornography, and there was no connection between the victim and the pornography or the evidence sought. In contrast, this search warrant sought evidence of sexual abuse, including naked photographs Johnson took of Jane Doe during a sexual assault. The affidavit stated Johnson downloaded the photographs of Jane Doe onto a computer at his mother’s residence in Woodbury — the location of the intended search. Cf. id. at 434-36. The affidavit supporting the search warrant also detailed Johnson’s sexual assaults of Jane Doe over several months, including sexual intercourse. These facts established a link between Johnson and Jane Doe, and the photographs sought. Unlike in Zimmerman, where there was no evidence the issuing court could rely upon to presume the defendant retained any relevant images (let alone any child pornography), here the issuing court could reasonably rely upon the presumption that Johnson would retain images of evidentiary value (including child pornography) in finding probable cause supported the warrant. See United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (presuming the defendant “would maintain in his possession the video and photographs that he made of the sexual encounter”); see also Lemon, 590 F.3d at 614 (“Possession of child pornography is a crime that is continuing in nature .... ”). Thus, the warrant, issued eleven months after Johnson took the naked photographs of Jane Doe, was not based upon stale information. 2. Nexus We next turn to the issue of the nexus between the sexual assaults in Montevideo and the search of Johnson’s residence in Woodbury. In order to support an application for a search warrant, “[t]here must be evidence of a nexus between the contraband and the place to be searched.” Colbert, 828 F.3d at 726 (quoting United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000)). Factors to consider in determining if a nexus exists include “the nature of the crime and the reasonable, logical likelihood of finding useful evidence.” Id. (quoting United States v. Etheridge, 165 F.3d 655, 657 (8th Cir." }, { "docid": "2961270", "title": "", "text": "explained the reason why Colbert was likely referencing children’s movies: Well, it’s our training that a subject that would discuss interesting things to do back at their home or that they have children’s movies back there is a way to make that location desirable to the child to try to get trust to try to get the child to go with them. Finally, Detective Myers replied “No” when the Court asked whether she was asserting that “if he, Mr. Colbert, was talking about movies with a 5 year old, that it’s most likely pornographic movies? Is that what you’re telling me?” A court should not substitute its own assumptions for the experienced expertise of Detective Myers and others trained in the area of child crimes. At best, the affidavit established probable cause to believe that Colbert was involved in the crime of child enticement. Even if a relationship exists between child enticement and child pornography, “it was unreasonable for the magistrate judge ... to infer such a nexus without further evidence to support that inference.” Hodson, 543 F.3d at 293. Accordingly, I would conclude that the warrant did not comply with the Fourth Amendment. Finally, I disagree with the majority’s alternative conclusion that the search can be upheld under the Leon good-faith exception. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the same reasons articulated in Hodson, I conclude that the search warrant was so lacking in indicia of probable cause as to render official belief in its existence unreasonable. [I]t was unreasonable for the officer executing the warrant in this case to believe that probable cause existed to search [defendant’s] computers for child pornography based solely on a suspicion ... [defendant] had engaged in child molestation. And, based on the record evidence, it appears that the only reason that the officer executing the search warrant ... did not recognize the insufficiency of the warrant was that [the detective] was also the investigating officer who prepared the affidavit, obtained the warrant, and had specialized, subjective knowledge about these kinds of criminal offenses," }, { "docid": "2961258", "title": "", "text": "he was attempting to appear as an authority figure. The affidavit also related that Colbert possessed handcuffs and a pair of binoculars, which could reasonably give rise to the inference that he was surveilling the area, looking for opportune targets. For no apparent reason, Colbert approached a five-year-old girl and spoke with her for approximately forty minutes. Finally, the affidavit explained that Colbert attempted to convince the girl to accompany him to his apartment, where he claimed to have movies for her to watch and other things for her to do. Taken together, those facts tend to paint a picture of an older male attempting to entice a young girl into sexual activity. The district court concluded that this information established probable cause to search Colbert’s apartment because “individuals sexually interested in children frequently utilize child pornography to reduce the inhibitions of their victims.” The court found that sexual depictions of minors could be logically related to the crime of child enticement, particularly under the facts of this case, in which Colbert had referred to movies and videos that he wanted the child to view at his apartment. We agree. Notwithstanding the affidavit’s admitted lack of detail, the reviewing magistrate could have reasonably concluded that the search of Colbert’s apartment was justified on this basis. Other circuits have dealt with the question whether evidence of child molestation or pedophilic tendencies can support probable cause to search for child pornography. In United States v. Hodson, the Sixth Circuit held that a search for child pornography was not supported by probable cause where the affidavit was based on the defendant’s online confession to an undercover officer that he had an attraction to children and had sexually molested a seven-year-old boy. 543 F.3d 286, 292 (6th Cir.2008). Noting the lack of expert testimony in the affidavit about the relationship between molestation and child pornography, the court found the affidavit lacking because it “established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography).” Id. A divided panel of the Second Circuit" }, { "docid": "16106562", "title": "", "text": "The affidavit provides no evidence of receipt of child pornography. No expert “specifically concludes” Dougherty is a pedophile. In the affidavit, Officer Bobkiewicz states only that “[b]ased upon [his] training and experience ... subjects in this type of criminal behavior have in their possession child pornography....” The affidavit provides no indication that Dougherty was interested in viewing images of naked children or of children performing sex acts. There is no evidence of conversations with students about sex acts, discussions with children about pictures or video, or other possible indications of interest in child pornography. Officer Bobkiewiez either did not search Dougherty’s work computer or email account for indications of pedophilia or child pornography, or did so and did not find any. Indeed, the affidavit does not even verify that Dougherty owned a computer or the other targets of the search or had internet service or another means of receiving child pornography at his home. Other circuits have split on the question of whether evidence of child molestation, alone, creates probable cause for a search warrant for child pornography. The Second Circuit has stated that a “crime allegedly involving] the sexual abuse of a minor, [does] not relate to child pornography.... That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.” United States v. Falso, 544 F.3d 110, 123 (2d Cir.2008). The Sixth Circuit agrees that, when probable cause is established “for one crime (child molestation) but [the warrant is] designed and requested [to] search for evidence of an entirely different crime (child pornography),” it is “beyond dispute that the warrant [i]s defective.” United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008). In fact, in Hodson, the evidence was much more related to viewing children in sex acts and to computers than the evidence in the affidavit here. There, in an internet chatroom, Hodson “confided that he ... favored young boys, liked looking at his nine-and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew. [Hodson] also expressed his desire to perform oral sex on the presumptive twelve-year-old" }, { "docid": "11309848", "title": "", "text": "the movies satisfied the first and third ele merits of the statutory definition ” of obscenity (emphasis added)). In any event, we believe the Supreme Court’s decision in P.J. Video, together with our own precedent in Vosburgh and Miknevich, compel us to require more than a conclusion by an affiant that the sought-after images constitute child pornography. Nor does combining the label “child pornography” with the rest of the information in the affidavit produce something greater than the sum of its parts. Pavulak’s prior child-molestation convictions are “not sufficient to establish — or even to hint at— probable cause as to the wholly separate crime of possessing child pornography” absent any allegation of a correlation between the two types of crimes. Virgin Islands v. John, 654 F.3d 412, 419 (3d Cir.2011). That correlation between the two crimes is the missing linchpin that differentiates this case from the Eighth Circuit’s decision in United States v. Colbert, 605 F.3d 573, 577-78 (8th Cir.2010). There, the defendant was “pushing a five-year-old girl (whom he did not know) on a playground swingset while talking to her ‘about movies’ and videos the man had at his home.’ ” John, 654 F.3d at 422 (describing Colbert, 605 F.3d at 575). Based on that information, officers obtained a warrant to search his home for child pornography. Colbert, 605 F.3d at 575-76. The Eighth Circuit upheld the warrant, concluding that the combination of the defendant’s “specific desire to watch movies at home with an unrelated five-year-old girl” and his “contemporaneous attempt to entice” her established probable cause to believe those movies contained child pornography. Id. By contrast, Detective Skubik’s affidavit did not link Pavulak’s prior acts of child molestation to the sought-after images. See John, 654 F.3d at 422 (distinguishing Colbert on this basis). His criminal history thus does not provide any additional reason to believe that these specific images met the legal definition of child pornography under Delaware law. Likewise, the successful corroboration of certain details about Pavulak’s other activities does not save the warrants. To be sure, a “ ‘tip conveying a contemporaneous observation of criminal" }, { "docid": "3947215", "title": "", "text": "is the same inversion at issue in the district court's decision here. . The Colbert Court explained, There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may very well be a logical precursor to physical interaction with a child: the relative ease with which child pornography may be obtained on the internet might make it a simpler and less detectable way of satisfying pedophilic desires. United States v. Colbert, 605 F.3d 573, 578 (8th Cir.2010) (citation omitted). . At least one circuit has held, albeit in an unpublished opinion, that the good-faith exception applied to a warrant that was substantially similar to the one at issue here. See United States v. Gove, 452 Fed.Appx. 555, 557 (5th Cir.2011) (unpublished). There, the search warrant was supported by an affidavit stating that the defendant's brother had observed non-pornographic child erotica on the defendant’s computer, and that the affiant knew from her \"training and experience that the majority of people who collect child pornography collect child erotica as well.” Id. The court concluded the affidavit was not \"bare bones” because it contained evidence of child-erotica possession and was supported with the agent's expert opinion that there is a link between child-erotica possession and child-pornography possession. Officers were therefore entitled to rely on the warrant in good faith. Id. . See also United States v. Flanders, 468 F.3d 269, 271-72 (5th Cir.2006) (good faith exception applied to warrant to search for child pornography where the defendant was alleged to have sexually abused and taken a nude photo of his daughter); Virgin Islands, 654 F.3d at 425-26 (Fuentes, J., dissenting) (good faith exception should apply where there were differing opinions regarding whether evidence of child molestation would provide probable cause to search for child pornography); United States v. Zimmerman," }, { "docid": "12875067", "title": "", "text": "1345 (noting that there was no probable cause when, following each inferential leap made by the officer, “virtual certainty became probability, which merged into possibility, which faded into chance”). Because the warrant connected Prideaux-Wentz to several email accounts responsible for uploading or possessing child pornography, we cannot say that it required too much of an inferential leap to conclude that Prideaux-Wentz might be a collector of child pornography. There was a bridge connecting the general averments contained in Agent Paulson’s affidavit to Prideaux-Wentz: jackinpulpit2001. The user name “jackinpulpit2001” was tied to Prideaux-Wentz and this ID was responsible for uploading a fair number of child pornography images. Furthermore, there was also an additional NCMEC Cyber Tip from Microsoft/MSN supporting Agent Paulson’s contention that Prideaux-Wentz might be a collector of child pornography. Thus, despite the general, boilerplate language contained within the warrant affidavit, there were enough specifics to suggest that Prideaux-Wentz might be a collector of child pornography. 3. There was a sufficient nexus between Prideaux-Wentz’s residence and the alleged criminal activity that Agent Paulson reasonably relied on the search warrant. Prideaux-Wentz also maintains that there was no nexus between the illegal activity and the search of his residence because Yahoo! submitted the last Cyber Tip ten months before he moved to the New Glarus home in November 2004. He contends that the warrant application did not assert that he posted any images from his new residence. We have previously held that “a finding of probable cause ‘does not require direct evidence linking a crime to a particular place.’ ” Watzman, 486 F.3d at 1008 (internal citation omitted). “Judges ‘may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant.’ ” United States v. Summage, 481 F.3d 1075, 1078 (8th Cir.2007) (quoting United States v. Thompson, 210 F.3d 855, 860 (8th Cir.2000)). Agent Paulson reasonably relied on the search warrant because there was a sufficient nexus between the uploaded images and Prideaux-Wentz’s New Glarus home. Agent Paulson established that Prideaux-Wentz owned a computer and subscribed to email services in his new home. The" }, { "docid": "3947214", "title": "", "text": "follows by constraint) is that the government may rely solely on a weak association with an organization engaged in both legal and illegal activity to find probable cause to search an individual's home. This type of guilt by association is unprecedented in the law of this circuit and has been explicitly rejected by the Supreme Court.” United States v. Martin, 430 F.3d 73 (2d Cir.2005) (Pooler, J., dissenting). Judge Pooler explained in her original Martin dissent that \"[sjuch reasoning would lead us to conclude that if collectors of illegal visual depictions tend to be men, then men are likely to be collectors of illegal visual depictions.” 426 F.3d at 82 (Pooler, J., dissenting). . Again, relevant here, then-Judge Sotoma-yor approvingly noted that “[i]n Martin, Judge Pooler criticized the majority’s inference that because collectors of child pornography are likely to be subscribers of e-groups, that the inverse also is true: namely, that subscribers are likely to collect child pornography.” Falso, 544 F.3d at 122 n. 14 (citing Martin, 426 F.3d at 82 (Pooler, J., dissenting)). This is the same inversion at issue in the district court's decision here. . The Colbert Court explained, There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may very well be a logical precursor to physical interaction with a child: the relative ease with which child pornography may be obtained on the internet might make it a simpler and less detectable way of satisfying pedophilic desires. United States v. Colbert, 605 F.3d 573, 578 (8th Cir.2010) (citation omitted). . At least one circuit has held, albeit in an unpublished opinion, that the good-faith exception applied to a warrant that was substantially similar to the one at issue here. See United States v. Gove, 452 Fed.Appx. 555, 557 (5th Cir.2011) (unpublished)." }, { "docid": "21348262", "title": "", "text": "States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (presuming the defendant “would maintain in his possession the video and photographs that he made of the sexual encounter”); see also Lemon, 590 F.3d at 614 (“Possession of child pornography is a crime that is continuing in nature .... ”). Thus, the warrant, issued eleven months after Johnson took the naked photographs of Jane Doe, was not based upon stale information. 2. Nexus We next turn to the issue of the nexus between the sexual assaults in Montevideo and the search of Johnson’s residence in Woodbury. In order to support an application for a search warrant, “[t]here must be evidence of a nexus between the contraband and the place to be searched.” Colbert, 828 F.3d at 726 (quoting United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000)). Factors to consider in determining if a nexus exists include “the nature of the crime and the reasonable, logical likelihood of finding useful evidence.” Id. (quoting United States v. Etheridge, 165 F.3d 655, 657 (8th Cir. 1999)). Johnson contends the affidavit lacked reliable information to sufficiently bolster or corroborate Jane Doe’s knowledge about Johnson’s Woodbury residence. We conclude the information in the affidavit established a search of Johnson’s Woodbury residence would likely result in discovery of evidence of sexual assault. The affidavit supporting the search warrant included' information specifically tying the sexual assault with evidence at the Woodbury residence Johnson shared with his mother. Jane Doe said Johnson took nude pictures of her during the first sexual assault. She said Johnson “downloaded the pictures [of her naked] on his computer that he has at his mom’s house in Woodbury.” The affidavit states Johnson “always downloaded all his pictures on the computers at his mom’s house in Woodbury” and returned to Woodbury “at least once a week.” These facts provided a substantial basis for the issuing court’s conclusion there was a reasonable likelihood evidence of Johnson’s sexual assault of Jane Doe would be found in Johnson’s Woodbury residence. Therefore, we hold the district court did not err in denying Johnson’s motion to" }, { "docid": "16106572", "title": "", "text": "by the government. Weber, 923 F.2d at 1346. . The Second Circuit also noted, however, that \"nothing in the affidavit draws a correlation between a person's propensity to commit both types of crimes.” Falso, 544 F.3d at 123. The Falso court did not consider whether a conclusory statement tying persons involved with sexual abuse of a minor to possession of child pornography would suffice to create probable cause in absence of more direct evidence or a more detailed explanation of why such a connection exists. BREWSTER, Judge, concurring in the judgment: I conclude the search warrant was supported by probable cause. United States v. Gourde, 440 F.3d 1065 (9th Cir.2006) (en banc). I accord more deference to the independent judgment of the magistrate judge and to the experience and training of the investigating officer. Based upon Officer Bobkiewiez’s specific training and experience in the field of sex crimes against children, the facts presented led him to conclude that an individual who molests children probably possesses child pornography. I agree with the Eighth Circuit’s analysis in United States v. Colbert, 605 F.3d 573, 578 (8th Cir.2010), that it is a common sense leap that an adult male, who teaches sixth graders, engaged in this type of inappropriate conduct would likely possess child pornography. Accord United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir.1994); United States v. Houston, 754 F.Supp.2d 1059, 1062-64 & n. 1 (D.S.D. 2010); see also Osborne v. Ohio, 495 U.S. 103, 111 n. 7, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Dougherty’s pattern of affirmative misconduct with several sixth grade students is closely related to an interest in looking at sexual images of minors. The facts suggested to Officer Bobkiewicz, a highly trained and experienced “Sex Crimes/Juvenile Detective, that a potential child predator has moved along the continuum of looking and into the realm of touching. Dougherty’s active misconduct distinguishes his case from the cases involving defendants who may have passively received unsolicited child pornography. E.g., United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir.2007); United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.1990). More" }, { "docid": "3947194", "title": "", "text": "child pornography.” Id. But, as with the warrant affidavit here, “that association [was] nowhere stated or supported in the affidavit.” Id. Although she acknowledged that “the district court undoubtedly had the safety of the public in mind,” Judge Sotomayor cautioned that “an individual’s Fourth Amendment right cannot be vitiated based on fallacious inferences drawn from facts not supported by the affidavit.” Id.; see, e.g., Virgin Islands v. John, 654 F.3d 412, 418-19 (3d Cir.2011) (holding that evidence showing a person has sexually assaulted a child could not establish probable cause to search for child pornography where the search warrant did not allege that child molesters are also likely to have child pornography); United States v. Hodson, 543 F.3d 286, 292 (6th Cir.2008) (holding that a search for child pornography was not supported by probable cause where the affidavit was based on the defendant’s online confession to an undercover officer that he had an attraction to children and had sexually molested a seven-year-old boy, but the affidavit lacked expert information about the relationship between molestation and child pornography possession). But at least one circuit has held that a warrant to search for evidence of child pornography was supported by sufficient probable cause where it was based on a common-sense determination that those who abuse children are also likely to possess child pornography. In United States v. Colbert, the Eighth Circuit considered whether probable cause justified a search for child pornography where the affidavit alleged that the defendant had attempted to lure a five-year-old girl to his apartment by claiming that he had “movies for her to watch.” 605 F.3d 573, 576-77 (8th Cir. 2010) (noting that “[determining whether probable cause exists requires a commonsense analysis of the facts available to the judicial officer who issued the warrant”). The Court upheld the district court, recognizing that “individuals sexually interested in children frequently utilize child pornography to reduce the inhibitions of their victims” and that “sexual depictions of minors could be logically related to the crime of child enticement,” particularly given the defendant’s specific reference to movies and videos. Id. Thus, Colbert held" }, { "docid": "16106564", "title": "", "text": "boy ... and his willingness to travel ... to do so.” Id. at 287. Nonetheless, the Sixth Circuit firmly held that the warrant was “so lacking in indicia of probable cause that” not even the good-faith exception to unlawfully executed warrants could apply. Id. at 292-93. The Eighth Circuit, however, has rejected the reasoning of Falso and Hodson, stating “[t]here is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.” United States v. Colbert, 605 F.3d 573, 578 (8th Cir.2010). The affidavit in Colbert, however, did include evidence that the accused had enticed a child to come to his apartment. Id. at 577. Ultimately, the question of probable cause is “not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317. Thus, while the “totality of circumstances” could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewicz’s conclusory statement tying this “subject,” alleged to have molested two children and looked inappropriately at others, to “having in [his] possession child pornography” is insufficient to create probable cause here. II. Qualified Immunity “A police officer is not entitled to qualified immunity if: (1) the facts show that the officers conduct violated a plaintiffs constitutional rights; and (2) those rights were clearly established at the time of the alleged violation.” Millender v. Cnty. of Los Angeles, 620 F.3d 1016, 1023-24 (9th Cir.2010) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)), cert. granted, — U.S. -, 131 S.Ct. 3057, 180 L.Ed.2d 884 (2011). The law in this circuit had not been clearly established regarding whether allegations of sexual misconduct or molestation at a place of work provide probable cause to search a residence for child pornography in the absence of an explanation tying together the two crimes. Neither this court nor the Supreme Court has addressed this question. Further, as discussed supra, other Circuit Courts of Appeal have split on similar questions. Compare Colbert, 605 F.3d at 578, with Falso, 544 F.3d at" }, { "docid": "16106561", "title": "", "text": "defendant had child pornography in his home. Id. We also noted that the expert in Rabe specifically concluded that the defendant was a pedophile, and the expert and magistrate knew that the defendant admitted to owning child pornography and desired to take nude photos of children before the warrant was issued. Weber, 923 F.2d at 1345-46 (citing Rabe, 848 F.2d at 995-96). If probable cause did not exist in Weber, it cannot exist here. In Weber, the affidavit included at least some direct evidence of the defendant’s possible possession of child pornography, including a two-year-old delivery of a catalog containing child pornography, an order from a fake catalog with image names suggesting child pornography, and general information regarding collectors, pedophiles, and molesters. Weber, 923 F.2d at 1345. Here, by contrast, the affidavit includes only a three-year-old allegation of attempted molestation by one student and current allegations of inappropriate touching of and looking at students. The affidavit contains no facts tying the acts of Dougherty as a possible child molester to his possession of child pornography. The affidavit provides no evidence of receipt of child pornography. No expert “specifically concludes” Dougherty is a pedophile. In the affidavit, Officer Bobkiewicz states only that “[b]ased upon [his] training and experience ... subjects in this type of criminal behavior have in their possession child pornography....” The affidavit provides no indication that Dougherty was interested in viewing images of naked children or of children performing sex acts. There is no evidence of conversations with students about sex acts, discussions with children about pictures or video, or other possible indications of interest in child pornography. Officer Bobkiewiez either did not search Dougherty’s work computer or email account for indications of pedophilia or child pornography, or did so and did not find any. Indeed, the affidavit does not even verify that Dougherty owned a computer or the other targets of the search or had internet service or another means of receiving child pornography at his home. Other circuits have split on the question of whether evidence of child molestation, alone, creates probable cause for a search warrant" }, { "docid": "2961259", "title": "", "text": "movies and videos that he wanted the child to view at his apartment. We agree. Notwithstanding the affidavit’s admitted lack of detail, the reviewing magistrate could have reasonably concluded that the search of Colbert’s apartment was justified on this basis. Other circuits have dealt with the question whether evidence of child molestation or pedophilic tendencies can support probable cause to search for child pornography. In United States v. Hodson, the Sixth Circuit held that a search for child pornography was not supported by probable cause where the affidavit was based on the defendant’s online confession to an undercover officer that he had an attraction to children and had sexually molested a seven-year-old boy. 543 F.3d 286, 292 (6th Cir.2008). Noting the lack of expert testimony in the affidavit about the relationship between molestation and child pornography, the court found the affidavit lacking because it “established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography).” Id. A divided panel of the Second Circuit reached a similar conclusion in United States v. Falso, invalidating a search warrant for child pornography that was based in part on evidence that the defendant had previously been arrested for sexually abusing a minor. 544 F.3d 110, 124 (2d Cir.2008). The court stated that the fact that “the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough. They are separate offenses and ... nothing in the affidavit draws a correlation between a person’s propensity to commit both types of crimes.” Id. at 123. But see id. at 132 (Livingston, J., concurring in part) (“Given the evidence ... that child pornography is often used by pedophiles and child sexual abusers to stimulate themselves and to entice young victims, a person of reasonable caution would take into account predilections revealed by past crimes or convictions as part of the inquiry into probable cause.”) (internal citations and quotation omitted). Hodson and Falso are factually inapposite. Neither case involved an application for a search warrant based on the defendant’s contemporaneous attempt" } ]

[ { "docid": "23365726", "title": "", "text": "restrictions of Condition 15 was insufficient, and that the court misapplied prior precedent. Pursuant to 18 U.S.C. § 3583(d), a district court has discretion to impose special conditions of supervised release, so long as the conditions are: reasonably related to the goals of deterrence, protection of the public, or rehabilitation of the offender; involve no greater deprivation of liberty than necessary to achieve those goals; and are consistent with any pertinent policy statements issued by the Sentencing Commission. United States v. Riley, 576 F.3d 1046, 1048 (9th Cir.2009). In weighing these factors for a particular defendant, this Court has held ■ that “the government ‘shoulders the burden of proving that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.’ ” Id. (quoting United States v. Weber, 451 F.3d 552, 559 (9th Cir.2006)); see also Rudd, 662 F.3d at 1260 (“The burden of establishing the necessity of any condition falls on the government.”). We reject Collins’s proposed application of the heightened “clear and convincing” burden to the government’s request for the lifetime term of release with Condition 15. The clear and convincing standard has been reserved for “exceptional” enhancements of the defendant’s offense level calculation. See United States v. Felix, 561 F.3d 1036, 1047 (9th Cir.2009). Condition 15 is a special condition of release, not an enhancement to Collins’s sentence. The clear and convincing standard, historically, has only been applied to sentencing courts’ findings in support of offense level enhancements, never for terms of supervised release. Although we decline to impose retroactively a heightened standard of proof on the government to support its requested conditions of release, we must still review the district court’s reasoning for each part of the sentence, including the imposed conditions of supervised release, for whether the district court adequately considered the 18 U.S.C. § 3553(a) factors. It is well-established law that “it would be procedural error ... to fail adequately to explain the sentence select ed.” Rudd, 662 F.3d at 1260 (quoting Carty, 520 F.3d at 993). While “we have held that" } ]

[ { "docid": "22420346", "title": "", "text": "have probationary supervision of this man. If the probation officer in charge of his case deems it appropriate, the probation officer will have the capacity to make that call. But it will not be allowed as a matter of course. Defense counsel expressly objected to this condition as applied to Wolf Child’s access to his own daughters, and the judge replied “I understand. You may take that issue to the circuit if you wish to do so, counsel.” Wolf Child filed a timely Notice of Appeal. Analysis I. “We review for abuse of discretion the conditions of supervised release set by the district court and challenged on ... appeal” when trial counsel objects to a supervised release condition. United States v. Napubu, 593 F.3d 1041, 1044 (9th Cir.2010). When trial counsel fails to object to the imposition of a supervised release condition, “we review[the] conditions for plain error.” United States v. Johnson, 626 F.3d 1085, 1088-89 (9th Cir.2010). Because “a district court has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude, ... we give considerable deference to [its] determination of the appropriate supervised release conditions.” United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006) (internal quotation marks and citation omitted). Conditions affecting fundamental rights, however, are “reviewed carefully.” United States v. Soltero, 510 F.3d 858, 866 (9th Cir.2007) (internal quotation marks and citation omitted). In imposing a condition of supervised release, the court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence imposed ... to afford adequate deterrence to criminal conduct; ... to protect the public from further crimes of the defendant; and ... to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C. §§ 3583(d), 3553(a); Napulou, 593 F.3d at 1044. Under 18 U.S.C. § 3583(d), conditions of supervised release “must: (1) be reasonably related to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) involve no greater deprivation of" }, { "docid": "20906814", "title": "", "text": "job. If you’re unemployed after the first 60 days of supervision, or if unemployed for 60 days after termination or layoff from employment, you shall perform at least 20 hours of community service work per week at the direction of Probation until gainfully employed. Again, I’m once again imposing this because I hope it will help you obtain gainful employment. And it will give you some work skills and help you make contacts with the community to find a job. (Sent. Tr: 36-37.) These reasons are consistent with the sentencing factors of § 3553(a), including providing Purham with educational or vocational training and addressing his history and characteristics. 18 U.S.C. § 3553(a)(1), (a)(2)(D). The law does not require a' district court to apply the § 3553(a) factors in checklist form. United States v. Jones, 774 F.3d 399, 404 (7th Cir.2014). Further, in United States v. Bryant, 754 F.3d 443, 444-45 (7th Cir.2014), we clarified our holding in Siegel. We stated that “a district judge is required to give a reason, consistent with the sentencing factors in section 3553(a), for every discretionary part of the sentence[,]” including special conditions of supervised release. Bryant, 754 F.3d at 444-45 (emphasis added). “[A] reason,” we emphasize, is not a laundry list. And “consistent with” does not require mathe matical precision. The district court met its statutory requirement under § 3553(a). The district court’s explanation for its condition regarding gang association also passes muster: You shall not associate with any member of any street gang. You shall not wear or carry on your person colors or any sign, symbol, or paraphernalia associated with gang activity. Only gang tattoos received prior to incarceration are not considered a violation of this condition. And I’m imposing that because you were a member of the Black P Stone street gang. Cutting ties with the group would be a major step toward marking yourself a law-abiding member of society when you’re released. (Sent. Tr. 38.) As before, these reasons are consistent with the sentencing factors of § 3553(a). The district court addressed the history and characteristics of Purham. 18 U.S.C." }, { "docid": "19470409", "title": "", "text": "a reasonable doubt\" standard applied here. Instead, he recognizes that the government's burden was to disprove self-defense by a preponderance of the evidence, as is generally required when a party seeks to adjust the offense level at sentencing. See United States v. Charlesworth , 217 F.3d 1155, 1158 (9th Cir. 2000). Although its remarks were somewhat ambiguous, the court may have based its conclusion on an objective view of the record without allocating burdens to either side. Even assuming, arguendo , that the district court failed to place the burden of proof on the government to disprove self-defense, however, the error was harmless. The surveillance video clearly showed that Evans opened fire on a fleeing man. Under the circumstances, any failure by the district court to properly assign the burden of proof did not affect its finding that Evans did not act in self-defense. II. Conditions of Supervised Release After serving his consecutive prison sentences for the violation of supervised release and the felon-in-possession charge, Evans will be placed on supervised release for three years, subject to numerous conditions. Evans challenges four of those conditions on various grounds. We generally review conditions of supervised release for abuse of discretion, but we review de novo claims that such conditions violate the Constitution. United States v. Watson , 582 F.3d 974, 981 (9th Cir. 2009). Evans argues that all of the challenged conditions are unconstitutionally vague. A condition of supervised release violates due process \"if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\" UnitedStates v. Hugs , 384 F.3d 762, 768 (9th Cir. 2004) (quoting United States v. Loy , 237 F.3d 251, 262 (3d Cir. 2001) ). A. Special Condition 5 Evans first argues that Special Condition 5, which imposed several gang-related constraints, was procedurally erroneous, substantively unreasonable, and unconstitutionally vague and overbroad. Special Condition 5 reads as follows: The defendant shall not associate with any member of the Down Below Gang. The defendant shall have no connection" }, { "docid": "22108084", "title": "", "text": "than “supporting]” Crisp’s dependents. To the extent the condition requires only financial support, the condition should make that explicit and should include a limitation which takes into account the defendant’s ability to pay. As with Kappes, because we are ordering a resentencing for Crisp, our comments above regarding the other 11 standard conditions which were not challenged by Crisp should be considered by Crisp’s sentencing judge. We are not the first court to be presented with at least some of these objections to the standard conditions. “A number of decisions in other circuits brush aside objections to the breadth and ambiguity of the many conditions of supervised release imposed by district judges.” Thompson, 777 F.3d at 380 (collecting cases). Other courts have interpreted an overbroad or ambiguous condition narrowly, for example, by reading a scienter requirement into a condition that is silent on the issue. See United States v. Phillips, 704 F.3d 754, 767-68 (9th Cir.2012) (construing the standard condition prohibiting the defendant from “frequenting] places where controlled substances are illegally sold” as “prohibiting] Phillips from knowingly going to a specific place where drugs are illegally used or sold, but ... not prohibiting] him from ... going to a given neighborhood simply because a person is selling drugs somewhere within that neighborhood”); United States v. Green, 618 F.3d 120, 123 (2d Cir.2010) (same, regarding a condition prohibiting association with street gangs). Likewise, we have imposed “an appropriate limiting construction” to a condition of supervised release prohibiting a defendant from “associating] ... with any member or organization which espouses violence or the supremacy of the white race,” despite “the absence of an explicit scienter requirement in the restriction.” Schave, 186 F.3d at 843. Similarly, we have previously decided that the erroneous imposition of two overbroad conditions does not amount to plain error requiring our intervention because “conditions of supervised release are readily modifiable at the defendant’s request.” United States v. Silvious, 512 F.3d 364, 371 (7th Cir.2008); accord United States v. McKissic, 428 F.3d 719, 726 (7th Cir.2005) (same, regard ing the imposition of a condition without notice to the defendant)." }, { "docid": "22336406", "title": "", "text": "1178 (9th Cir.2002) (“[Section] 3583(a) clearly provide[s] that supervised release, just like a term of imprisonment, is ‘part of the sentence.’ Our cases dispel any doubt about what this means.”). We do note, however, that in addition to this broad meaning in the statute, we have employed the noun “sentence” to refer specifically to the term of imprisonment. See, e.g., United States v. Lamont, 330 F.3d 1249, 1251 (9th Cir.2003) (“The district court sentenced Lamont to twenty-four months with credit for time served, to be followed by three years of supervised release. Lamont has served his sentence and is currently on supervised release.”); United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir.2002) (per curiam) (“The district court imposed a 127-month sentence, plus a term of supervised release and a $200 special assessment.”). Despite the dual meaning of “sentence” in common usage, the statute that provides the only source of Joyce’s right to appeal is crystal clear. Under 18 U.S.C. § 3742(a)(3), a “sentence” can include fines, periods of imprisonment and supervised release, and mandatory and special conditions of supervised release. That is the only statutory basis upon which Joyce may invoke the jurisdiction of this court to challenge any aspect of the sentence imposed, including an attack on specific conditions of his supervised release. Given this language, we hold that Joyce knowingly and voluntarily waived his right to challenge the special conditions of supervised release on the grounds he now raises. The dissent reasons that we are bound by our prior decision in United States v. Bolinger, 940 F.2d 478 (9th Cir.1991), to reach the merits of Joyce’s appeal. In Bolinger, a defendant challenged his 36-month term of imprisonment and a special condition of supervised release that forbade him from associating with motorcycle gangs. Id. at 479. Despite holding that Bolinger’s plea agreement validly waived his right to appeal, the court nevertheless proceeded to address the merits of his arguments regarding the special condition. Id. at 480. The court did so without any discussion about whether Bolinger’s waiver of his right to appeal his “sentence” included only terms of" }, { "docid": "19470412", "title": "", "text": "(emphasis omitted) (quoting United States v. Collins , 684 F.3d 873, 890 (9th Cir. 2012) ). The Presentence Investigation Report stated that Evans \"has been identified as an affiliate of the Down Below Gang, which operates out of the Sunnydale Housing Projects.\" The probation officer's sentencing recommendation notes that \"[o]n his prior term of supervised release, the defendant was prohibited from associating with any member of the Down Below Gang and was prohibited from being in the vicinity of the Sunnydale District in San Francisco.\" At sentencing, Evans's counsel explained that Evans grew up in Sunnydale, where \"the two main gangs\" are the \"Up the Hill Gang and Down the Hill Gang\" (presumably the same as the Down Below Gang), and that Evans had friends in both gangs. On this record, the district court's reasoning was apparent: it believed that Evans was connected to the Down Below Gang, and that requiring him to avoid that and other gangs would reduce his risk of reoffending. Because Special Condition 5 is not procedurally erroneous, we next consider whether it is substantively unreasonable. \"A supervised release condition is substantively unreasonable if it 'is not reasonably related to the goal[s] of deterrence, protection of the public, or rehabilitation of the offender,' or if it infringes more on the offender's liberty than is 'reasonably necessary' to accomplish these statutory goals.\" Wolf Child , 699 F.3d at 1090 (alteration in original) (first quoting Collins , 684 F.3d at 892 ; and then quoting 18 U.S.C. § 3583(d)(2) ). The government bears the burden of showing \"that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.\" United States v. Weber , 451 F.3d 552, 559 (9th Cir. 2006). The district court did not abuse its discretion in imposing the gang condition. Evans denies being a gang member and argues that none of his offenses were gang-related. However, he has been linked to the Down Below Gang and its members, and he was previously arrested for violating the conditions of his supervised release that" }, { "docid": "22185485", "title": "", "text": "the name \"usu[ally] acquired at birth or through a court order.”). . Although it is not crucial to our finding that the meaning of \"criminal street gang” would be apparent to the average person, we note that 18 U.S.C. § 521(a) defines \"criminal street gang” as \"an ongoing group, club, organization, or association of 5 or more persons ... that has as [one] of its primary purposes the commission of [one] or more of the criminal offenses described in [18 U.S.C. § 521(c) and] ... the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in [§ 521(c)].” . We note that Soltero only violates the condition if the gang member he associates with is known to him to be a gang member, thus undermining his argument that he is “expected to know of every gang currently operating on the streets ... as well as gangs operating after his release from prison....” See Ross, 476 F.3d at 722-23; see also United States v. Johnson, 446 F.3d 272, 281 (2d Cir.2006) (\"Generally, supervised release provisions are read to exclude inadvertent violations.”). . The government argues that, read in context, it is clear that the term \"disruptive group” was intended to cover only those disruptive groups that are also \"gangs.” However, even if Soltero would only be prosecuted for a supervised release violation if he associated with disruptive gangs (and not if he associated with other arguably “disruptive groups ”) — which, if true, would make the condition redundant and, thus, unnecessary for the government’s stated purposes — there is no way for Soltero to know this from the condition’s plain language. A probationer must be put on clear notice of what conduct will (and will not) constitute a supervised release violation, a rule that is of particular importance when the condition seems to reach constitutionally protected conduct. See United States v. Chapel, 428 F.2d 472, 473-74 (9th Cir.1970). An overly broad condition like this one cannot be \"saved” merely because the government promises to enforce it in a narrow manner. See" }, { "docid": "22185477", "title": "", "text": "had been doing since he was two years old. Nevertheless, the district court imposed the generic condition reproduced above. Soltero argues that, because the condition could be read to unjustifiably require him to use a surname he had never used, imposing it was an abuse of the district court’s discretion. Williams, 356 F.3d at 1052. We disagree. While it is possible that “Soltero” is the name that defendant uses, he was born “Resinger,” which has apparently never been changed legally. No authority vests with the federal courts to grant a name change. If the defendant wishes to legally change his name under California law, he must follow the procedures allowed under state law. The district court did not err by imposing the second condition of supervised release. D. Conditions Relating to Gang Association The final set of conditions Soltero disputes reads as follows: Condition 8: The defendant shall not associate with any known member of any criminal street gang or disruptive group as directed by the Probation Officer, specifically, any known member of the Delhi street gang; Condition 9: The defendant shall not be present in any area known as a criminal street gang gathering of the Delhi, as directed by the Probation Officer; Condition 10: The defendant shall not wear, display, use or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana, jewelry, paraphernalia, or any article of clothing which may connote affiliation with, or membership in the Delhi gang. The district court justified its imposition of these conditions by stating that “defendant is a Delhi gang member and is presumably familiar with the relevant insignia, commonly known gathering places, and pertinent members” of this gang. Soltero nonetheless argues that the terms “associate,” “any criminal street gang,” “disruptive group,” “any area known as a criminal street gang gathering of the Delhi,” and “items that connote affiliation with, or membership in the Delhi gang” are impermissibly vague. United States v. Hugs, 384 F.3d 762, 768 (9th Cir.2004) (“A [condition of supervised release] ‘violates due process of law if it either forbids or requires the doing of an act in" }, { "docid": "17817662", "title": "", "text": "it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” United States v. Soltero, 510 F.3d 858, 866 (9th Cir.2007) (per curiam) (internal citations and quotation marks omitted). In United States v. Vega, 545 F.3d 743 (9th Cir.2008), building on our Soltero decision, we rejected a challenge to a supervised release condition that prohibited the defendant from “associating with any member of any criminal street gang.” Id. at 746. We found that the term “associate” was not impermissibly vague because “men of common intelligence” could understand its meaning. In order to uphold the condition, we imported a mens rea element so that the defendant was prohibited from knowingly associating with members of a criminal street gang. Id. at 749-50. Here, we hold that a reasonable person would understand that the prohibition on “frequenting] places” where illegal drugs are used or sold prohibits Phillips from knowingly going to a specific place where drugs are illegally used or sold, but that it does not prohibit him from living in Seattle or going to a given neighborhood simply because a person is selling drugs somewhere within that neighborhood. See United States v. King, 608 F.3d 1122, 1128 (9th Cir.2010) (violations of supervision conditions “require an element of mens rea ”). Moreover, as in Soltero where “incidental contact” did not qualify as association, 510 F.3d at 866-67, incidental contact with such places here would not constitute “frequenting.” Frequent in this context means to “be in ... often or habitually.” Merriam-Webster’s Collegiate Dictionary, 11th Edition (2003). Under this common sense reading of the term of supervised release, it is neither vague nor overbroad. Therefore, Phillips has failed to meet the high bar necessary to show that the district court committed plain error in imposing this standard condition. FORFEITURE Finally, we turn to the Government’s cross-appeal. The district court did not impose the in personam forfeiture judgment because it found that there were “too many procedural problems with” the Government’s forfeiture application, SER 627, and" }, { "docid": "20906811", "title": "", "text": "those social ills and serve as a deterrent to others. (Sent. Tr. 27.) Following its discussion of the crack/powder disparity, the district court noted Purham’s redeeming qualities. “[Y]ou have performed well in Bureau of Prisons. You’ve gone to the Challenge Program, the GED course work, parenting class. You’ve held positions in the food service and you’ve had no disciplinary infractions.” (Sent. Tr. 29.) The district court’s thoughtful and thorough explanation of its sentence is tailored to Purham and is wholly consistent with the § 3553(a) factors. The sentence is anything but unreasonable. C. The Conditions of Supervised Release We now turn to Purham’s final issue on appeal—whether the district court erred in imposing the gang-association and community-service conditions of supervised release. The government argues that Purham waived any challenge to these conditions by not objecting to them in his first appeal. We disagree. After his first appeal, we decided United States v. Thompson, 111 F.3d 368 (7th Cir.2015). That case vacated a number of conditions of supervised release after finding them to be fatally vague. Id. Two such conditions are present in substantially similar form here. We will not apply waiver under these circumstances. Cf. United States v. Adkins, 743 F.3d 176, 193 (7th Cir.2014) (“[D]espite a waiver of appellate review, the Due Process Clause permits review when a special condition is so vague that no reasonable person could know what conduct is permitted and what is prohibited.”). Further, immediately after the district court imposed its sentence on remand, Purham stated, “I would like to appeal.” (Sent. Tr. 39.) Although Pur-ham did not object to a specific condition of supervised release at the time of sentencing, we construe this statement as a general objection to his entire sentence, which includes the court’s conditions of supervised release. Accordingly, we review the court’s conditions for an abuse of discretion. United States v. Baker, 755 F.3d 515, 523 (7th Cir.2014) (citing United States v. Neal, 662 F.3d 936, 938 (7th Cir.2011)). Purham argues that the gang-association and community-service conditions must be vacated because the district court did not explain how the conditions comport" }, { "docid": "19599763", "title": "", "text": "in determining an appropriate sentence.\" United States v. Ritchison, 887 F.3d 365, 370 (8th Cir. 2018) (internal quotation marks omitted). Given this, the district court did not abuse its discretion in sentencing within the Guidelines. IV. Finally, Washington argues that Special Condition #3 of his supervised release, which deals with gang association, is unconstitutionally vague. In full, the condition states: The defendant must not knowingly associate with any member, prospect, or associate member of any gang without the prior approval of the United States Probation Office. If the defendant is found to be in the company of such individuals while wearing the clothing, colors, or insignia of a gang, the Court will presume that this association was for the purpose of participating in gang activities. While a district court has \"broad discretion\" to impose special conditions, when a defendant challenges a special condition on constitutional grounds, as in this case, we review de novo. United States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010). We agree with Washington that the special condition at issue here is unconstitutionally vague for three reasons. First , the term gang is undefined such that it gives no notice as to which groups of people are actually covered. \"Gang\" is not defined in any relevant statute. Cf. United States v. Green, 618 F.3d 120, 123 (2d Cir. 2010) (per curiam) (\"The term 'criminal street gang' is cabined by a clear statutory definition that would permit Green to comply with the condition and permit officers to consistently enforce the condition.\"). And the term is not delineated by common use. Black's Law Dictionary defines \"gang\" as a \"group of persons who go about together or act in concert, esp. for antisocial or criminal purposes.\" Gang, Black's Law Dictionary (10th ed. 2014). Thus, gangs are not necessarily tied to criminal activity. See LoFranco v. U.S. Parole Comm'n, 986 F.Supp. 796, 810 (S.D.N.Y. 1997) (finding term \"other motorcycle gangs\" unconstitutionally vague because it ensnares legitimate \"motorcycle groups\" that count individuals like \"Arnold Schwarzenegger\" as members), aff'd, 175 F.3d 1008 (2d Cir. 1999). The lack of statutory definition and" }, { "docid": "22336407", "title": "", "text": "and special conditions of supervised release. That is the only statutory basis upon which Joyce may invoke the jurisdiction of this court to challenge any aspect of the sentence imposed, including an attack on specific conditions of his supervised release. Given this language, we hold that Joyce knowingly and voluntarily waived his right to challenge the special conditions of supervised release on the grounds he now raises. The dissent reasons that we are bound by our prior decision in United States v. Bolinger, 940 F.2d 478 (9th Cir.1991), to reach the merits of Joyce’s appeal. In Bolinger, a defendant challenged his 36-month term of imprisonment and a special condition of supervised release that forbade him from associating with motorcycle gangs. Id. at 479. Despite holding that Bolinger’s plea agreement validly waived his right to appeal, the court nevertheless proceeded to address the merits of his arguments regarding the special condition. Id. at 480. The court did so without any discussion about whether Bolinger’s waiver of his right to appeal his “sentence” included only terms of imprisonment and not conditions of supervised release. In the absence of any holding or explanation whatsoever on the specific issue Joyce raises, we do not find Bolinger to be instructive. Because Joyce validly waived his right to appeal any aspect of his sentence, including the district court’s imposition of special conditions of supervised release, we lack jurisdiction to consider the merits of his challenge to the computer and Internet use restrictions. DISMISSED for lack of jurisdiction. . Special condition 3 states: \"The defendant shall not have access to any computer capable of accessing the Internet during the period of supervised release provided that if the defendant needs to use a computer in connection with his work the probation officer may after consulting with the defendant and his employer authorize such use[.]” Special condition 4 states: \"During the period of supervised release, the defendant shall notify his employers of his conviction in this case if the prospective employment requires him to have contact with computers or minor children.” . For example, Joyce points to the following" }, { "docid": "22185478", "title": "", "text": "street gang; Condition 9: The defendant shall not be present in any area known as a criminal street gang gathering of the Delhi, as directed by the Probation Officer; Condition 10: The defendant shall not wear, display, use or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana, jewelry, paraphernalia, or any article of clothing which may connote affiliation with, or membership in the Delhi gang. The district court justified its imposition of these conditions by stating that “defendant is a Delhi gang member and is presumably familiar with the relevant insignia, commonly known gathering places, and pertinent members” of this gang. Soltero nonetheless argues that the terms “associate,” “any criminal street gang,” “disruptive group,” “any area known as a criminal street gang gathering of the Delhi,” and “items that connote affiliation with, or membership in the Delhi gang” are impermissibly vague. United States v. Hugs, 384 F.3d 762, 768 (9th Cir.2004) (“A [condition of supervised release] ‘violates due process of law if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ”) (quoting United States v. Loy, 237 F.3d 251, 262 (3d Cir.2001)). He also argues that the conditions are overbroad because casual contact with others — including contacts protected by the First Amendment— could render him in violation of these conditions. While a district court’s discretion to set conditions of supervised release is broad even when those conditions affect fundamental rights, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998), restrictions infringing upon fundamental rights are “reviewed carefully,” United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988). A restriction on a defendant’s right to free association is nonetheless valid if it: (1) “is reasonably related to” the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) “involves no greater deprivation of liberty than is reasonably necessary” to achieve these goals; and (3) “is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a).” 18" }, { "docid": "19470413", "title": "", "text": "whether it is substantively unreasonable. \"A supervised release condition is substantively unreasonable if it 'is not reasonably related to the goal[s] of deterrence, protection of the public, or rehabilitation of the offender,' or if it infringes more on the offender's liberty than is 'reasonably necessary' to accomplish these statutory goals.\" Wolf Child , 699 F.3d at 1090 (alteration in original) (first quoting Collins , 684 F.3d at 892 ; and then quoting 18 U.S.C. § 3583(d)(2) ). The government bears the burden of showing \"that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.\" United States v. Weber , 451 F.3d 552, 559 (9th Cir. 2006). The district court did not abuse its discretion in imposing the gang condition. Evans denies being a gang member and argues that none of his offenses were gang-related. However, he has been linked to the Down Below Gang and its members, and he was previously arrested for violating the conditions of his supervised release that prohibited him from entering the Sunnydale District (where the Down Below Gang operates) and associating with persons convicted of felonies. A condition barring contact with an organization may be substantively reasonable even if the defendant denies membership, see United States v. Ross , 476 F.3d 719, 721-22 (9th Cir. 2007), and it need not relate to the defendant's current or prior offenses as long as it serves the statutory goals of sentencing, see Watson , 582 F.3d at 983. The district court \"could properly have concluded that [Evans] was more likely to relapse into crime if he returned to his prior associations. Probation conditions may seek to prevent reversion into a former crime-inducing lifestyle by barring contact with old haunts and associates, even though the activities may be legal.\" United States v. Bolinger , 940 F.2d 478, 480 (9th Cir. 1991). Because Special Condition 5 is neither procedurally erroneous nor substantively unreasonable as a whole, we next address Evans's challenges to subsections of the condition. Evans challenges the requirement that he have \"no connection whatsoever" }, { "docid": "20906806", "title": "", "text": "supervised release for 120 months, and a $100 special assessment. The district court also imposed special conditions of supervised release, two of which Purham challenges on appeal. One condition concerns gang association and the other condition concerns community service. Regarding gang association, the district court ordered Purham to “not associate with any member of any street gang.” The court’s order continued: ‘You shall not wear or carry on your person colors or any sign, symbol, or paraphernalia associated with gang activity. Only gang tattoos received prior to incarceration are not considered a violation of this condition.” The government quickly sought clarification: [Government]: Your Honor said he should not possess or wear any gang colors. You don’t mean obviously that he can’t wear red if that’s associated; they have to be. intended to be a gang color as opposed to just that color? The Court: Yes. [Government]: Just to make the record clear on that. The Court: Yes. Any questions? [Defense Attorney]: No, Your Honor. (Sent. Tr. 40.) Regarding community service, the district court ordered: “If you’re unemployed after the first 60 days of supervision, or if unemployed for 60 days after termination or layoff from employment, you shall perform at least 20 hours of community service' work per week at' the direction of Probation until gainfully employed.” (Sent. Tr. 37.) On October 31, 2014, the same day of the resentencing, Purham filed a notice of appeal. II. Analysis We review a district court’s determination of the scope of remand de novo. United States v. Husband, 312 F.3d 247, 251 (7th Cir.2002). The reasonableness of a sentence is reviewed for an abuse of discretion. United States v. Turner, 569 F.3d 637, 640 (7th Cir.2009). Factual findings are reviewed for clear error. United States v. Walsh, 723 F.3d 802, 807 (7th Cir.2013). Our analysis begins with whether the district court acted within the scope of our remand order. A. The Remand Order According to Purham, the district court “ignore[d]” the “limited nature” of our remand order when it made a fresh, drug-quantity determination at resentencing. (Appellant’s Br. 22-23.) The district court did" }, { "docid": "19470410", "title": "", "text": "subject to numerous conditions. Evans challenges four of those conditions on various grounds. We generally review conditions of supervised release for abuse of discretion, but we review de novo claims that such conditions violate the Constitution. United States v. Watson , 582 F.3d 974, 981 (9th Cir. 2009). Evans argues that all of the challenged conditions are unconstitutionally vague. A condition of supervised release violates due process \"if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\" UnitedStates v. Hugs , 384 F.3d 762, 768 (9th Cir. 2004) (quoting United States v. Loy , 237 F.3d 251, 262 (3d Cir. 2001) ). A. Special Condition 5 Evans first argues that Special Condition 5, which imposed several gang-related constraints, was procedurally erroneous, substantively unreasonable, and unconstitutionally vague and overbroad. Special Condition 5 reads as follows: The defendant shall not associate with any member of the Down Below Gang. The defendant shall have no connection whatsoever with the Down Below Gang or any other gang. If he is found to be in the company of such individuals or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities. \"On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.\" United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Evans asserts that the court's failure to adequately explain the choice of conditions is procedural error. See United States v. Wolf Child , 699 F.3d 1082, 1090 (9th Cir. 2012) (\"[T]he district court must provide a sufficient explanation to 'permit meaningful appellate review' and communicate 'that a reasoned decision has been made.' \" (quoting Carty , 520 F.3d at 992-93 ) ). The court did not explain its reasoning for this condition, which was procedural error unless \"the reasoning is apparent from the record.\" Id." }, { "docid": "22185479", "title": "", "text": "terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ”) (quoting United States v. Loy, 237 F.3d 251, 262 (3d Cir.2001)). He also argues that the conditions are overbroad because casual contact with others — including contacts protected by the First Amendment— could render him in violation of these conditions. While a district court’s discretion to set conditions of supervised release is broad even when those conditions affect fundamental rights, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998), restrictions infringing upon fundamental rights are “reviewed carefully,” United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988). A restriction on a defendant’s right to free association is nonetheless valid if it: (1) “is reasonably related to” the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) “involves no greater deprivation of liberty than is reasonably necessary” to achieve these goals; and (3) “is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a).” 18 U.S.C. § 3583(d); United States v. Sales, 476 F.3d 732, 735 (9th Cir.2007). Here, the conditions imposed upon Soltero were, in all but one respect, within the district court’s discretion to impose. Conditions 9 and 10 are not impermissibly vague because they specifically reference the “Delhi gang,” and the district court is entitled to presume that Soltero — who has admitted to being a member of this gang— is familiar with the Delhi gang’s members, its places of gathering, and its paraphernalia. Hugs, 384 F.3d at 768; see also United States v. Ross, 476 F.3d 719, 722-23 (9th Cir.2007) (upholding supervised release condition requiring defendant to refrain from associating with known neo-Nazi/white supremacist groups); United States v. Schiff, 876 F.2d 272, 276 (2d Cir.1989) (condition forbidding parolee from “associating] with any group that advocates non-compliance with the tax laws” not vague or overbroad). Moreover, the conditions meet the criteria set forth in 18 U.S.C. § 3583(d). See Ross, 476 F.3d at 721-22; United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (“Probation conditions may" }, { "docid": "20906815", "title": "", "text": "in section 3553(a), for every discretionary part of the sentence[,]” including special conditions of supervised release. Bryant, 754 F.3d at 444-45 (emphasis added). “[A] reason,” we emphasize, is not a laundry list. And “consistent with” does not require mathe matical precision. The district court met its statutory requirement under § 3553(a). The district court’s explanation for its condition regarding gang association also passes muster: You shall not associate with any member of any street gang. You shall not wear or carry on your person colors or any sign, symbol, or paraphernalia associated with gang activity. Only gang tattoos received prior to incarceration are not considered a violation of this condition. And I’m imposing that because you were a member of the Black P Stone street gang. Cutting ties with the group would be a major step toward marking yourself a law-abiding member of society when you’re released. (Sent. Tr. 38.) As before, these reasons are consistent with the sentencing factors of § 3553(a). The district court addressed the history and characteristics of Purham. 18 U.S.C. § 3553(a)(1). In denying him the ability to associaté with members of street gangs, the district court promoted respect for the rule of law. Id. at § 3553(a)(2)(A). The district court also sought to deter Purham from committing future crimes, thereby protecting the public from further crimes. Id. at § 3553(a)(2)(B)-(C). We commend the district court for its deliberate approach to issuing conditions of supervised release. Nevertheless, we must vacate the conditions under Thompson, Regarding the community-service condition, the district court in Thompson imposed the same condition. 777 F.3d at 381. We vacated it for a couple of reasons. First, the district court set “no limit on the amount of community service that the defendant could be ordered to do.” Id. And second, the district court did not mention the application note to U.S.S.G. § 5F1.3, which proscribes community service in excess of 400 hours. Because these deficiencies are also present here, our ease law demands the condition be vacated. The same is true for the gang-association condition. In Thompson, the district court forbade the" }, { "docid": "19470411", "title": "", "text": "whatsoever with the Down Below Gang or any other gang. If he is found to be in the company of such individuals or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities. \"On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.\" United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Evans asserts that the court's failure to adequately explain the choice of conditions is procedural error. See United States v. Wolf Child , 699 F.3d 1082, 1090 (9th Cir. 2012) (\"[T]he district court must provide a sufficient explanation to 'permit meaningful appellate review' and communicate 'that a reasoned decision has been made.' \" (quoting Carty , 520 F.3d at 992-93 ) ). The court did not explain its reasoning for this condition, which was procedural error unless \"the reasoning is apparent from the record.\" Id. (emphasis omitted) (quoting United States v. Collins , 684 F.3d 873, 890 (9th Cir. 2012) ). The Presentence Investigation Report stated that Evans \"has been identified as an affiliate of the Down Below Gang, which operates out of the Sunnydale Housing Projects.\" The probation officer's sentencing recommendation notes that \"[o]n his prior term of supervised release, the defendant was prohibited from associating with any member of the Down Below Gang and was prohibited from being in the vicinity of the Sunnydale District in San Francisco.\" At sentencing, Evans's counsel explained that Evans grew up in Sunnydale, where \"the two main gangs\" are the \"Up the Hill Gang and Down the Hill Gang\" (presumably the same as the Down Below Gang), and that Evans had friends in both gangs. On this record, the district court's reasoning was apparent: it believed that Evans was connected to the Down Below Gang, and that requiring him to avoid that and other gangs would reduce his risk of reoffending. Because Special Condition 5 is not procedurally erroneous, we next consider" }, { "docid": "20906817", "title": "", "text": "defendant from “associat[ing] with any person convicted of a felony, unless granted permission to do so by the probation officer.” Thompson, 777 F.3d at 377. We found the condition “fatally vague,” noting that because it failed to include a scienter requirement it “appeared] to impose strict liability.” Id. We also questioned the clarity of the term association&emdash;“Is a single meeting enough, or is the word intended to denote friendship, acquaintanceship, or frequent meetings?” Id. Here, the district court’s condition prohibits street-gang association rather than felony association, but that is a distinction without ’ a difference. Although the district court required an intent element for wearing gang-related colors (i.e., Purham must, intend to wear them as a representation of a gang in order to offend the condition), it offered no such requirement for the association component of the condition. We remain unsure, then, whether an accidental or chance meeting with a street-gang member would violate this condition. Clarification must be provided to determine what “association” means. Accordingly, under Thompson, this condition must also be vacated. Purham’s sentence requires a limited remand for reconsideration of the above terms of supervised release. United States v. Sewell, 780 F.3d 839, 852 (7th Cir.2015); see also Siegel, 753 F.3d at 717 (“So the prison sentences ... stand, but the cases must be remanded for reeonsid- eration of the conditions of supervised release”). III. Conclusion We AFFIRM in part and VACATE in part. We AFFIRM the district court’s term of imprisonment. It is substantively reasonable, and the district court did not exceed the scope of our remand in imposing it. We VACATE, however, the community-service and gang-association conditions of supervised release discussed above. The sentence is AFFIRMED in every other respect. The case is REMANDED to the district court for limited proceedings consistent with this opinion. AFFIRMED in part, VACATED in part. . The formal name for this amendment is Amendment 782. . In agreeing that he conspired to distribute 280 grams or more of crack cocaine, Purham relieved the government of its burden of proof at sentencing. Cf. United States v. Redmond, 667 F.3d 863," } ]

[ { "docid": "13414550", "title": "", "text": "Attorney General’s Manual, supra, at 30 n. 3 (discussing exercise of discretion only in definition of policy statements). Nor is there much explanatory power in any distinction that looks to the use of mandatory as opposed to permissive language. While an agency’s decision to use “will” instead of “may” may be of use when drawing a line between policy statements and legislative rules, see Community Nutrition, 818 F.2d at 946-47, the endeavor miscarries in the interpretive/legislative rule context. Interpretation is a chameleon that takes its color from its context; therefore, an interpretation will use imperative language — or at least have imperative meaning — if the interpreted term is part of a command; it will use permissive language— or at least have a permissive meaning — if the interpreted term is in a permissive provision. A non-legislative rule’s capacity to have a binding effect is limited in practice by the fact that agency personnel at every level act under the shadow of judicial review. If they believe that courts may fault them for brushing aside the arguments of persons who contest the rule or statement, they are obviously far more likely to entertain those arguments. And, as failure to provide notice-and-comment rulemaking will usually mean that affected parties have had no prior formal opportunity to present their contentions, judicial review for want of reasoned decisionmak-ing is likely, in effect, to take place in review of specific agency actions implementing the rule. Similarly, where the agency must defend its view as an application of Chevron “prong two” (i.e., where Congress has not “clearly” decided for or against the agency interpretation), so that only reasonableness is at issue, agency disregard of significant policy arguments will clearly count against it. As Donald Elliott has said, agency attentiveness to parties’ arguments must come sooner or later. “As in the television commercial in which the automobile repairman intones ominously ‘pay me now, or pay me later,’ the agency has a choice-” E. Donald Elliott, Reinventing Rulemaking, 41 Duke L. J. 1490, 1491 (1992). Because the threat of judicial review provides a spur to the agency" } ]

[ { "docid": "21615307", "title": "", "text": "entirely possible that the Secretary could properly viéw such a failure as affecting other aspects of the state’s Medicaid plan. See Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981) (noting that Congress granted the Secretary “exceptionally broad authority” under thé Medicaid statute); see also Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (explaining that “substantial deference is accorded to the interpretation of the authorizing statute by the agency authorized with administering it”). For example, David McNally, the deputy director of the office in charge of Medicaid financial management, stated that if a state failed to comply with the estate recovery provisions, it might be possible to withhold the federal government’s administrative matching funds, “on the basis the state is not properly administering the program.” J.A. 290-91. Such a limited sanction could be sufficiently proportionate to the breach as to avoid any Tenth Amendment concerns. We therefore reject West Virginia’s argument that the statute can only operate in an unconstitutional manner. To the extent that West Virginia contends its actions were coerced by the mere possibility that it could lose all of its federal funds, that argument is unavailing. West Virginia suggests that had Congress imposed a more narrowly tailored penalty for failure to comply with the estate recovery provision, then the program might not have been coercive. That is, had the states known up-front the precise cost of refusing to comply with the estate recovery provisions, the states could then have intelligently weighed their public policy judgments against the costs of not complying with the program in order to decide whether to implement an estate recovery program. The essence of this argument is that a federal conditional grant is per se unconstitutional unless the governing statute anticipates every way in which the conditions could possibly be violated and creates enforcement mechanisms that directly and as narrowly as possible target each potential violation. While such a statute almost certainly would not be found to be unduly coercive, the Medicaid Act is not coercive simply because it fails to" }, { "docid": "21615303", "title": "", "text": "it did not comply with the estate recovery provisions—thus stated the universe of possibilities established by Congress for cases involving non-compliant state plans. Clearly then, the circumstances of this case are substantially different from those in Riley. Here, the federal government did not withhold (or threaten to withhold) the entirety of a substantial federal grant because of an insubstantial failing by the state. Instead, the federal government simply informed West Virginia, in language tracking that of the Medicaid Act, of the potential consequences that would flow from the failure to enact an estate recovery program. West Virginia thereafter complied with the estate recovery provisions. Thus, the question we must answer is not whether the federal government could withhold all of West Virginia’s Medicaid funds had West Virginia not implemented an estate recovery program. That question is, at this point, a hypothetical one that is not properly before us. Instead, the question we face is whether Congress’ requirement that states participating in the Medicaid program implement the estate recovery provisions or lose all or part of their FMAP is impermis-sibly coercive and thus violates the Tenth Amendment. As to that question, we are constrained to answer it in the negative. West Virginia is in effect mounting a facial challenge to the constitutionality of the estate recovery provisions. West Virginia, therefore, has a very heavy burden to carry, and must show that the estate recovery provisions cannot operate constitutionally under any circumstance. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Schweiker, 655 F.2d at 406 (stating that “one who contests congressional exercises of the spending power must show that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress” (internal quotation marks omitted)). As noted above, the Medicaid Act gives the Secretary the ability to impose upon a non-compliant state" }, { "docid": "21615287", "title": "", "text": "Thus, while Congress may use its spending powers to encourage the states to act, it may not coerce the states into action. If the Congressional action amounts to coercion rather than encouragement, then that action is not a proper exercise of the spend ing powers but is instead a violation of the Tenth Amendment. See New York, 505 U.S. at 156, 112 S.Ct. 2408 (“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States_”); Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (“As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States.”); Gillespie v. City of Indianapolis, 185 F.3d 693, 704 (7th Cir.1999) (“Whether Congress has invaded the province reserved to the States by the Tenth Amendment is ... a question that must be answered by inquiring whether Congress has exceeded the limits of authority bestowed upon it by Article I of the Constitution.”). West Virginia does not contend that the estate recovery provisions fail to satisfy the general spending clause requirements set forth above. Instead, West Virginia argues only that the estate recovery provisions are unduly coercive and therefore violate the Tenth Amendment. Its argument in this regard is fairly straightforward. West Virginia willingly agreed to participate in the Medicaid program in 1965, when the program was established. At that time, states were not required to recover expenses from the estates of deceased beneficiaries. To meet the requirements of the Medicaid program, West Virginia was required to expand and improve its medical infrastructure. The state funded these improvements through the issuance of long-term development bonds to be paid primarily through anticipated Medicaid reimbursements. Almost thirty years later, however, Congress changed the rules of the game and required the states to implement an estate recovery plan, a policy with which West Virginia strongly disagrees. Given its poverty rate and high percentage of elderly residents, West Virginia is unusually dependent on federal Medicaid dollars— nationally, approximately 15% of the population" }, { "docid": "22575078", "title": "", "text": "Virginia’s failure to provide educational services to 126 disabled students who had been disciplined for reasons unrelated to their disabilities. Id. at 560. A majority of the en banc court sustained Virginia’s challenge on the ground that the IDEA does not unambiguously condition receipt of federal funds on provision of services under such circumstances. Id. at 561. Although it was not necessary to the disposition of the case, six of thirteen judges agreed that the federal government’s withholding 100% of an annual special education grant of '$60 million in response to the Commonwealth’s failure to provide private educational services to 126 students was unduly coercive. Id. at 569-70. According to these judges, “a Tenth Amendment claim of the highest order lies where, as here, the Federal Government ... withholds the entirety of a substantial federal grant on the ground that the States refuse to fulfill their federal obligation in some insubstantial respect rather than submit to policy dictates of Washington in a matter peculiarly within their powers as sovereign States.” Id. at 570. We later characterized this dicta'in Riley as indicating that “the coercion theory remains viable in this circuit, and that federal statutes that threaten the loss of an entire block of federal funds upon a relatively minor failing by a state are constitutionally suspect.” West Va. v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 291 (4th Cir.2002). The State of West Virginia challenged, on Tenth Amendment grounds, the constitutionality of certain provisions in the federal Medicaid statute that required the State to adopt a program to recover certain expenditures from the estates of deceased Medicaid beneficiaries. Id. at 283-84. West Virginia argued that this requirement was unduly coercive because the State stood to lose more than $1 billion in federal Medicaid funds each year if it failed to implement an estate recovery program that would generate only about $2 million each year. Id. at 291. Because the federal government had not, in fact, withheld or threatened to withhold the State’s entire Medicaid grant, we treated West Virginia’s argument as a facial challenge to the requirement" }, { "docid": "17468512", "title": "", "text": "1232, 1238, 131 L.Ed.2d 106 (1995) (treating a section of PRM as \"prototypical example of an interpretive rule” and not requiring notice and comment procedures); Columbus Comm. Hosp. v. Califano, 614 F.2d 181, 187 (8th Cir.1980) (“A provision of the Provider Reimbursement Manual [PRM] is an agency interpretive rule, not subject to the rulemaking procedures of the Administrative Procedures Act”). Normally, we treat interpretive rules, in contrast to legislative rules, as mere agency statements which provide guidance to parties but which do not have the force of law. Guernsey Memorial Hosp., - U.S. at -, 115 S.Ct. at 1239 (\"Interpretive rules ... do not have the force and effect of law and are not accorded that weight in the adjudicatory process\"); Drake v. Honeywell, Inc., 797 F.2d 603, 607 (8th Cir.1986) (interpretive rules \"cannot be independently enforced as law,” and \"[a]n action based on a violation of an interpretive rule does not state a legal claim” because interpretive rules are not mandatory and \"never can be vio lated”). However, both parties, the PRRB, and the district court, appear to have treated section 312 of the PRM to provide both the binding requirements and the sole method for Ramsey to recover Medicare cost reimbursements without undertaking \"reasonable collection efforts.” Because this issue has not been briefed or argued by the parties we will, for the purposes of this case only, treat section 312 as providing a binding agency rule, and we will review the Secretary’s interpretation with substantial deference. . The PRRB also made a similar observation that Ramsey failed to comply with the documentation requirements laid out in 42 C.F.R. §§ 413.20 and 413.24. The PRRB provided no analysis of how Ramsey failed to comply with these sections and essentially relied on the same reasons that Ramsey failed to comply with the documentation requirement in section 312(D) of the PRM. Accordingly, we reject the Secretary's arguments that Ramsey failed to comply with 42 C.F.R. §§ 413.20 and 413.24 for the same reason that we reject the Secretary's arguments about section 312(D) of the PRM. . The Secretary's interpretation essentially, and" }, { "docid": "17468511", "title": "", "text": "may not collect from the hospital on the basis of an expectation of a change in the hospital's collection policy. Omnibus Budget Reconciliation Act of 1987 (OBRA), Pub.L. No. 100-203, § 4008(c), 101 Stat. 1330, 1330-55, as amended by the Technical and Miscellaneous Revenue Act of 1988, Pub.L. No. 100-647, § 8402, 102 Stat. 3342, 3798, as amended by the Omnibus Reconciliation Act of 1989, Pub.L. No. 101-239, § 6023(a), 103 Stat. 2106, 2167. . The Hill-Burton program gets its name from the Hill-Burton Act, 42 U.S.C. §§ 291-291o-l, which ties receipt of federal hospital construction money to the hospital's furnishing a certain level of services to indigent non-Medicare patients. The hospital must provide a yearly set amount of free service to Hill-Burton qualified patients, directly related to how much construction money the hospital received from the federal government. . Here, the issue is whether the Secretary properly construed a provision in the PRM—which normally is construed to contain only non-binding interpretive rules. See Shalala v. Guernsey Memorial Hosp., - U.S. -, -, 115 S.Ct. 1232, 1238, 131 L.Ed.2d 106 (1995) (treating a section of PRM as \"prototypical example of an interpretive rule” and not requiring notice and comment procedures); Columbus Comm. Hosp. v. Califano, 614 F.2d 181, 187 (8th Cir.1980) (“A provision of the Provider Reimbursement Manual [PRM] is an agency interpretive rule, not subject to the rulemaking procedures of the Administrative Procedures Act”). Normally, we treat interpretive rules, in contrast to legislative rules, as mere agency statements which provide guidance to parties but which do not have the force of law. Guernsey Memorial Hosp., - U.S. at -, 115 S.Ct. at 1239 (\"Interpretive rules ... do not have the force and effect of law and are not accorded that weight in the adjudicatory process\"); Drake v. Honeywell, Inc., 797 F.2d 603, 607 (8th Cir.1986) (interpretive rules \"cannot be independently enforced as law,” and \"[a]n action based on a violation of an interpretive rule does not state a legal claim” because interpretive rules are not mandatory and \"never can be vio lated”). However, both parties, the PRRB, and the" }, { "docid": "21615306", "title": "", "text": "the withholding of FMAP funds for the long-term care services that subject a beneficiary to the mandatory estate recovery provisions, which in West Virginia would amount to approximately $800 million, almost one-third of the Medicaid funds West Virginia receives. West Virginia suggests that even this more limited sanction would be unconstitutional, given the meager funds collected through the estate recovery program and the devastating effect the loss of $300 million would have on West Virginia’s health care system. We need not decide whether the withholding of all federal funds for West Virginia’s long-term services would pass constitutional muster, because we cannot agree with West Virginia’s cramped view of the Secretary’s discretion to fashion appropriate penalties. If a state plan is non-compliant, section 1396c gives the Secretary the discretion to limit federal payments “to categories under or parts of the State plan not affected by [the] failure.” While the Secretary might conclude that the long-term care services are the parts of the plan affected by a state’s failure to implement an estate recovery program,' it is entirely possible that the Secretary could properly viéw such a failure as affecting other aspects of the state’s Medicaid plan. See Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981) (noting that Congress granted the Secretary “exceptionally broad authority” under thé Medicaid statute); see also Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (explaining that “substantial deference is accorded to the interpretation of the authorizing statute by the agency authorized with administering it”). For example, David McNally, the deputy director of the office in charge of Medicaid financial management, stated that if a state failed to comply with the estate recovery provisions, it might be possible to withhold the federal government’s administrative matching funds, “on the basis the state is not properly administering the program.” J.A. 290-91. Such a limited sanction could be sufficiently proportionate to the breach as to avoid any Tenth Amendment concerns. We therefore reject West Virginia’s argument that the statute can only operate in an unconstitutional manner. To the" }, { "docid": "227187", "title": "", "text": "by, Amos v. Maryland Dept, of Pub. Safety, 126 F.3d 589 (4th Cir.1997). The Fourth Circuit held that such tactic began to resemble impermissible coercion because it forced a state agency to choose between providing services for a small number of students and surrendering all special education funds. See id. at 570 (stating in dicta that it is coercive to have a state forego the entirety of a substantial federal grant on the ground that the state agency refused to fulfill their federal obligation “in some insubstantial respect rather than submit to the demands of Washington.”). Even though this holding was not essential to the disposition in Riley, it stands for the proposition that “the loss of an entire block of federal funds upon a relatively minor failing by a state [is] constitutionally suspect.” See West Virginia, 289 F.3d at 291. In West Virginia, the Fourth Circuit revisited the reasoning in Riley and acknowledged the quagmire that courts may become involved in when they utilize this coercion theory. See id. at 291 (citing cases). In West Virginia, the Fourth Circuit was faced with a situation where the Federal Government provided West Virginia $1 billion in Medicaid funds each year, yet recovered less than $2 million each year from an estate recovery plan. See id. at 291-92. Under the Medicaid statute at issue, once a state failed to enact an estate recovery program within the time frame established by Congress, its Medicaid plan was no longer compliant. See id. At that time, “the Secretary shall notify [the] State agency that further payments will not be made to the State (or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply.” See id. (citing 42 U.S.C. § 1396c). West Virginia complied with the estate recovery provisions; therefore, all that remained was a constitutional attack on the face of the statute. The Fourth Circuit held that Congress’ requirement that States participating in the Medicaid program" }, { "docid": "22575079", "title": "", "text": "characterized this dicta'in Riley as indicating that “the coercion theory remains viable in this circuit, and that federal statutes that threaten the loss of an entire block of federal funds upon a relatively minor failing by a state are constitutionally suspect.” West Va. v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 291 (4th Cir.2002). The State of West Virginia challenged, on Tenth Amendment grounds, the constitutionality of certain provisions in the federal Medicaid statute that required the State to adopt a program to recover certain expenditures from the estates of deceased Medicaid beneficiaries. Id. at 283-84. West Virginia argued that this requirement was unduly coercive because the State stood to lose more than $1 billion in federal Medicaid funds each year if it failed to implement an estate recovery program that would generate only about $2 million each year. Id. at 291. Because the federal government had not, in fact, withheld or threatened to withhold the State’s entire Medicaid grant, we treated West Virginia’s argument as a facial challenge to the requirement that States implement estate recovery programs. Id. at 292. We upheld the statute on the ground that it gives the Secretary of Health and Human Services discretion to impose a penalty for non-compliance that is less severe than withholding 100% of a State’s Medicaid funding. Id. at 292-93. The waiver condition at issue here is unambiguous and unequivocal: If a “program or activity” — here, GMU — accepts federal funding, then it may not assert Eleventh Amendment immunity in defense against a claim for violation of § 504. While it is certainly true, as the defendants contend, that this waiver condition operates whenever a “program or activity” accepts any federal funds, that fact alone does not compel the conclusion that such a program or activity was coerced to accept the condition. The coercion inquiry focuses on the “financial inducement offered by Congress,” and the Court in South Dakota held that the minimum-drinking-age condition was not unduly coercive based on the relatively small size of the federal grant that the State risked losing. 483 U.S. at" }, { "docid": "21615317", "title": "", "text": "federal incentive complies with the general spending clause requirements and cannot be considered coercive, then the ultimate political decision lies with the state. If the conditions imposed on the federal grant are repugnant to the state, the state may decline to accept the funds. See, e.g., South Dakota v. Dole, 791 F.2d 628, 634 (8th Cir.1986) (“Very simply, to the extent a state finds the conditions attached by Congress distasteful, the state has available-to it the simple expedient of refusing to yield to what it urges is ‘federal coercion.’ ”), aff'd, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). If the state, however, decides that its citizens are better served by the acceptance of the funds even though the funds come with a condition that the state would otherwise find objectionable, then it is completely proper for the state to be held accountable for that decision. See New York, 505 U.S. at 168, 112 S.Ct. 2408 (“Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people.”). Because we have rejected West Virginia’s coercion argument and West Virginia does not otherwise contend that the estate recovery provisions exceed Congress’ powers under the Spending Clause, its accountability argument fails. IV. The Medicaid Act gives the Secretary the authority to impose a sanction short of withholding all Medicaid funds in the event a state fails to comply with the Act’s estate recovery provisions. See 42 U.S.C.A. 1396c. Although West Virginia believed an estate recovery program was bad public policy, it nonetheless enacted such a program before the Secretary imposed any sanction for West Virginia’s initial failure to timely implement an estate recovery program. Given these circumstances, the only question we decide today is whether the requirement that states implement an estate recovery program on pain of losing all or part of their Medicaid funds is im-permissibly coercive on its face and therefore violates the Tenth Amendment, a question we answer in the negative. We express no opinion, however, about whether the estate recovery provisions would be" }, { "docid": "19452683", "title": "", "text": "- ----, the provision before us includes the words \"statement[s] of policy.\" § 1395hh(a)(2). Even if we can easily read the words \"rule[s]\" and \"requirement[s]\" as referring to substantive or legislative rules, \"statement[s] of policy\" are a different matter. Ibid. Indeed, the APA explicitly excludes \"statements of policy\" from its notice-and-comment requirements. 5 U.S.C. § 553(d)(2). So how can we say that our provision-which explicitly includes statements of policy-encompasses only those legislative rules that the APA subjects to notice-and-comment rulemaking? The answer to this question linguistically is that our provision does not include all \"statements of policy,\" but rather only those that are, in effect, substantive rules. That is because the statute does not \"just refe[r] to 'statements of policy' \", ante, at ----; it refers to \"statement[s] of policy ... that establis [h ] or chang [e ] a substantive legal standard ,\" § 1395hh(a)(2) (emphasis added). Those words, read together, are simply another way of referring to substantive rules in disguise. This reading may seem odd at first blush, but the statutory history and the consequences of the alternative interpretation persuade me that this is precisely what Congress intended. B I turn next to the history of the statute, which provides significant support for believing that the Medicare rulemaking provision does not extend to interpretive rules. As enacted in 1965, the Medicare Act authorized the agency to promulgate \"regulations\" as necessary, but did not require the agency to follow any particular rulemaking procedures. See § 102(a), 79 Stat. 331. The APA's notice-and-comment requirements did not apply to Medicare regulations, for the APA specifically exempts \"matter[s] relating to ... benefits\" from its scope. 5 U.S.C. § 553(a)(2). In 1971, the agency nonetheless adopted a policy of voluntarily promulgating most regulations through notice-and-comment rulemaking. See Public Participation in Rule Making, 36 Fed. Reg. 2532. But the agency did not use notice and comment for all policy decisions during this time. It also provided extensive guidance to participants in the Medicare system through less formal means like manuals (a practice it still follows today). See, e.g. , Daughters of Miriam Ctr." }, { "docid": "5646394", "title": "", "text": "omitted). “In carrying out this duty, the Secretary [of HHS] is charged with ensuring that each state plan complies with a vast network of specific statutory requirements.” Id. “Through this express delegation of specific interpretive authority ... the Congress manifested its intent that the Secretary’s determinations, based on interpretation of the relevant statutory provisions, should have the force of law.” Id. (emphasis added; citations and internal quotations omitted). Plainly stated, the Court finds that this is precisely the type of congressional authorization needed to invoke Chevron deference. From a practical standpoint, ascribing some deference to HHS’ determination makes sénse. HHS has singular competence in administering the Medicaid program. and is thus well-suited to interpret the technical intricacies of Medicaid law. As the Second Circuit colorfully noted, “We take care not lightly to disrupt the informed judgments of those who must labor daily in the minefield of often arcane policy, especially given the substantive complexities of the Medicaid statute.” Wilson-Coker, 311 F.3d at 138; see also West Virginia, 475 F.3d at 212 (“The Medicaid statute is a prototypical ‘complex and highly technical regulatory program’ benefitting from expert administration, which makes deference particularly warranted.”) (citations and internal quotations omitted). Tracking this general reasoning, the Court finds that HHS’ determination must be entitled to some deference, in light of the expertise and institutional knowledge required to administer a complex program governed by a labyrinth of complex laws. The Commissioner likens HHS’ interpretation to a mere non-binding opinion letter, which would not be entitled to Chevron deference. See U.S. v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (“interpretations contained in policy statements, agency manuals, and enforcement guidelines ... [are] beyond the Chevron pale.”) (citation and internal quotations omitted). The Court, however, is not persuaded. Even though CMS’ letter was only the opening salvo in a potentially longer battle, it is still binding in the sense that it remains the position of the federal government. As it stands, the federal government has refused to approve the proposed amendment to Indiana’s Medicaid plan, meaning the proposed amendment remains denied. See" }, { "docid": "21615301", "title": "", "text": "West Virginia’s Tenth Amendment challenge must fail. III. A. West Virginia’s Tenth Amendment argument centers on its assertion that the federal government would withhold all of West Virginia’s federal Medicaid funds unless West Virginia implemented an estate recovery program. Given that the federal government provides West Virginia with more than $1 billion in Medicaid funds each year but recovers less than $2 million each year from the estate recovery program, West Virginia argues that the threatened penalty is so disproportionate to the effect of West Virginia’s breach that it must be viewed as coercive. If the government in fact withheld the entirety of West Virginia’s FMAP because of the state’s failure to implement an estate recovery program, then serious Tenth Amendment questions would be raised. Cf. Riley, 106 F.3d at 570 (opinion of Lut-tig, J.) (“I would think that a Tenth Amendment claim of the highest order lies where, as here, the Federal Government ... withholds the entirety of a substantial federal grant on the ground that the States refuse to fulfill their federal obligation in some insubstantial respect.”). In reality, however, the government threatened to withhold “all or part of [West Virginia’s] Federal financial participation in the State’s Medicaid Program.” J.A. 155 (emphasis added). This small difference in language makes all the difference in our analysis. Once West Virginia failed to enact an estate recovery program within the time frame established by Congress, its Medicaid plan was no longer in compliance with the Medicaid Act. When the Secretary of HHS determines that a state plan or its administration fails to comply with the Act, the Secretary shall notify [the] State agency that further payments will not be made to the State (or, in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply. 42 U.S.C.A. § 1396c (West 1992) (emphasis added). The notice sent by HHS to West Virginia—that West Virginia stood to lose all or part of its Medicaid funds if" }, { "docid": "227188", "title": "", "text": "West Virginia, the Fourth Circuit was faced with a situation where the Federal Government provided West Virginia $1 billion in Medicaid funds each year, yet recovered less than $2 million each year from an estate recovery plan. See id. at 291-92. Under the Medicaid statute at issue, once a state failed to enact an estate recovery program within the time frame established by Congress, its Medicaid plan was no longer compliant. See id. At that time, “the Secretary shall notify [the] State agency that further payments will not be made to the State (or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply.” See id. (citing 42 U.S.C. § 1396c). West Virginia complied with the estate recovery provisions; therefore, all that remained was a constitutional attack on the face of the statute. The Fourth Circuit held that Congress’ requirement that States participating in the Medicaid program implement the estate recovery provisions, or lose all or part of their funding, is not impermissi-bly coercive because it gives Congress the option of implementing less drastic means than complete withholding of all funds. See id. at 291-93. Similar to the Medicaid statute, Section 504 is not unconstitutionally coercive because it is not an “all or nothing” statute. Section 504 prohibits “any program or activity” that receives federal financial assistance from discriminating against a qualified individual with a disability. See 29 U.S.C. § 794(a). The statute defines program or activity as all of the operations of a department, agency, or other instrumentality of a state, or each department or agency to which the federal assistance is extended. See id. at § 794(b). As the Eighth Circuit has noted, [B]y accepting funds offered to an agency, the State waives its immunity only with regard to that individual agency that receives them. A State and its instrumentalities can avoid Section 504’s waiver requirement on a piecemeal basis, by simply accepting federal funds for some departments and declining" }, { "docid": "19452684", "title": "", "text": "and the consequences of the alternative interpretation persuade me that this is precisely what Congress intended. B I turn next to the history of the statute, which provides significant support for believing that the Medicare rulemaking provision does not extend to interpretive rules. As enacted in 1965, the Medicare Act authorized the agency to promulgate \"regulations\" as necessary, but did not require the agency to follow any particular rulemaking procedures. See § 102(a), 79 Stat. 331. The APA's notice-and-comment requirements did not apply to Medicare regulations, for the APA specifically exempts \"matter[s] relating to ... benefits\" from its scope. 5 U.S.C. § 553(a)(2). In 1971, the agency nonetheless adopted a policy of voluntarily promulgating most regulations through notice-and-comment rulemaking. See Public Participation in Rule Making, 36 Fed. Reg. 2532. But the agency did not use notice and comment for all policy decisions during this time. It also provided extensive guidance to participants in the Medicare system through less formal means like manuals (a practice it still follows today). See, e.g. , Daughters of Miriam Ctr. for the Aged v. Mathews , 590 F. 2d 1250, 1254 (CA3 1978) (describing the agency's Provider Reimbursement Manual, which \"interprets and elaborates upon\" Medicare regulations). In the early 1980s, the agency proposed to change its notice-and-comment policy: It no longer intended to use notice and comment when the disadvantages of doing so \"outweigh[ed] the benefits of receiving public comment.\" Administrative Practice and Procedures, 47 Fed. Reg. 26860 (1982). This announcement provoked widespread opposition. Citizens' groups and others asked Congress to \"make it clear, by statute , that Medicare regulations ... should be subject to\" the APA. Medicare Appeals Provisions: Hearing on S. 1158 before the Subcommittee on Health of the Senate Committee on Finance, 99th Cong., 1st Sess., 62 (1985). In 1986, Congress responded to these requests by enacting a provision that required public notice and a 60-day comment period for \"any regulation,\" with a few exceptions. See 42 U.S.C. § 1395hh (1982 ed., Supp. IV) ; § 9321(e)(1), 100 Stat. 2017. Congress meant the term \"regulation\" to include only substantive or legislative rules." }, { "docid": "21615288", "title": "", "text": "West Virginia does not contend that the estate recovery provisions fail to satisfy the general spending clause requirements set forth above. Instead, West Virginia argues only that the estate recovery provisions are unduly coercive and therefore violate the Tenth Amendment. Its argument in this regard is fairly straightforward. West Virginia willingly agreed to participate in the Medicaid program in 1965, when the program was established. At that time, states were not required to recover expenses from the estates of deceased beneficiaries. To meet the requirements of the Medicaid program, West Virginia was required to expand and improve its medical infrastructure. The state funded these improvements through the issuance of long-term development bonds to be paid primarily through anticipated Medicaid reimbursements. Almost thirty years later, however, Congress changed the rules of the game and required the states to implement an estate recovery plan, a policy with which West Virginia strongly disagrees. Given its poverty rate and high percentage of elderly residents, West Virginia is unusually dependent on federal Medicaid dollars— nationally, approximately 15% of the population is covered by Medicaid, but 20% of West Virginians are covered. See Brief of Appellant at 14. West Virginia contends that because the federal government has “co-opted the tax-base,” Brief of Appellant at 13, West Virginia cannot realistically replace lost Medicaid funds by increasing taxes on its citizens. According to West Virginia, if federal Medicaid funds were withdrawn, West Virginia’s health care system would effectively collapse. Thus, faced with the federal government’s threat to withdraw Medicaid funding, West Virginia argues it had no choice but to comply by implementing an estate recovery program. West Virginia therefore argues that the federal government’s requirement that it adopt an estate recovery program violates the Tenth Amendment. The district court suggested that the estate recovery provisions might be coercive, see West Virginia, 132 F.Supp.2d at 442, but the court nonetheless rejected West Virginia’s Tenth Amendment argument, stating that “[t]he Supreme Court [has] admonished courts to avoid becoming entangled in ascertaining the point at which federal inducement to comply with a condition becomes compulsion.” Id. at 444 (internal quotation marks" }, { "docid": "21615318", "title": "", "text": "preferences; state officials remain accountable to the people.”). Because we have rejected West Virginia’s coercion argument and West Virginia does not otherwise contend that the estate recovery provisions exceed Congress’ powers under the Spending Clause, its accountability argument fails. IV. The Medicaid Act gives the Secretary the authority to impose a sanction short of withholding all Medicaid funds in the event a state fails to comply with the Act’s estate recovery provisions. See 42 U.S.C.A. 1396c. Although West Virginia believed an estate recovery program was bad public policy, it nonetheless enacted such a program before the Secretary imposed any sanction for West Virginia’s initial failure to timely implement an estate recovery program. Given these circumstances, the only question we decide today is whether the requirement that states implement an estate recovery program on pain of losing all or part of their Medicaid funds is im-permissibly coercive on its face and therefore violates the Tenth Amendment, a question we answer in the negative. We express no opinion, however, about whether the estate recovery provisions would be constitutional if the only sanction available for states refusing to implement an estate recovery program were the loss of the state’s entire Medicaid reimbursement from the federal government. AFFIRMED. . The Tenth Amendment provides that \"[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X. . Each state's FMAP is determined by a statutory formula that establishes a reimbursement rate of between 50% and 83% and gives higher reimbursement rates to states with lower per-capita incomes. See 42 U.S.C.A. §§ 1396b(a)(l), 1396d(b) (West Supp.2001). For fiscal year 2002, West Virginia’s FMAP is approximately 75%; only Mississippi's FMAP is higher. See Federal Financial Participation in State Assistance Expenditures, 65 Fed.Reg. 69560, 69561 (Nov. 17, 2000). . The Supplemental Security Income (\"SSI”) program generally excludes an individual's principal residence when calculating SSI eligibility. See 42 U.S.C.A. § 1382b(a)(l) (West Supp.2001). The Medicaid Act incorporates this exclusion. See 42 U.S.C.A. §§ 1396a(a)(10)(A)(i)(II) (West Supp.2001); 1396a(a)(10)(A)(ii)(V) (West" }, { "docid": "21615312", "title": "", "text": "Virginia, was a subject traditionally reserved to the states, see id. at 562, 570, 571, and that Virginia resisted the federal policy because it believed the policy to be misguided in that “it deprives the State of its most effective disciplinary and instructional tool for instilling in its especially recalcitrant students the sense of responsibility they so sorely lack.” Id. at 571. Tracking Judge Luttig’s analysis, West Virginia argues that: (1) the federal government’s requirement that it seek recovery from the estates of deceased Medicaid beneficiaries is a “‘regulatory device’ to compel the states to implement a federal policy judgment,” Brief of Appellant at 30; (2) issues of inheritance and health care are subject matters traditionally reserved to the states; and (3) its resistance to the estate recovery program is based on West Virginia’s “legitimate perception that the Estate Recovery program is bad public policy that impacts adversely upon the delivery of medical services to the aged and disabled.” Brief of Appellant at 32-33. Given our conclusion that the estate recovery provisions are not facially coercive, these arguments are insufficient to establish a Tenth Amendment violation. We agree with West Virginia that health care and inheritance are subject matters' generally reserved to the states, and we assume that West Virginia truly believes that the estate recovery program is bad public policy. But points like these merely reflect basic concerns of federalism. While they might explain why a coercive federal action will be held to violate the Tenth Amendment, they do not, in and of themselves, establish a Tenth Amendment violation. See Litman v. George Mason Univ., 186 F.3d 544, 556 (4th Cir.1999) (explaining that “in New York [v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992),] the Court emphasized that principles of federalism do not pose an independent constitutional bar to Congress’ powers under the Spending Clause”). That is, if the federal action is not impermissibly coercive and is in all other respects a proper exercise of the spending power, a Tenth Amendment violation will not be found simply because the federal action operates in an" }, { "docid": "21615289", "title": "", "text": "is covered by Medicaid, but 20% of West Virginians are covered. See Brief of Appellant at 14. West Virginia contends that because the federal government has “co-opted the tax-base,” Brief of Appellant at 13, West Virginia cannot realistically replace lost Medicaid funds by increasing taxes on its citizens. According to West Virginia, if federal Medicaid funds were withdrawn, West Virginia’s health care system would effectively collapse. Thus, faced with the federal government’s threat to withdraw Medicaid funding, West Virginia argues it had no choice but to comply by implementing an estate recovery program. West Virginia therefore argues that the federal government’s requirement that it adopt an estate recovery program violates the Tenth Amendment. The district court suggested that the estate recovery provisions might be coercive, see West Virginia, 132 F.Supp.2d at 442, but the court nonetheless rejected West Virginia’s Tenth Amendment argument, stating that “[t]he Supreme Court [has] admonished courts to avoid becoming entangled in ascertaining the point at which federal inducement to comply with a condition becomes compulsion.” Id. at 444 (internal quotation marks omitted). On appeal, West Virginia contends that the district court effectively concluded that a Tenth Amendment claim based on the coercion theory is not viable, even though six judges of this court indicated their acceptance of the theory in Virginia Department of Education v. Riley, 106 F.3d 559, 569-72 (4th Cir.1997) (en banc) (opinion of Luttig, J., in which Wilkinson, C.J., and Russell, Widener, Wilkins, and Williams, JJ., joined). We agree with West Virginia that, while the district court’s treatment of the coercion theory finds support in cases from other circuits, it is inconsistent with the yiews expressed by six judges in Riley. Nonetheless, as we explain later, we conclude that the district court properly granted summary judgment to HHS. Other circuits have expressed strong doubts about the viability of the coercion theory. See Kansas v. United States, 214 F.3d 1196, 1202 (10th Cir.2000) (“[T]he coercion theory is unclear, suspect, and has little precedent to support its application.”); California v. United States, 104 F.3d 1086, 1092 (9th Cir.1997) (“[T]o the extent that there is any" }, { "docid": "21615308", "title": "", "text": "extent that West Virginia contends its actions were coerced by the mere possibility that it could lose all of its federal funds, that argument is unavailing. West Virginia suggests that had Congress imposed a more narrowly tailored penalty for failure to comply with the estate recovery provision, then the program might not have been coercive. That is, had the states known up-front the precise cost of refusing to comply with the estate recovery provisions, the states could then have intelligently weighed their public policy judgments against the costs of not complying with the program in order to decide whether to implement an estate recovery program. The essence of this argument is that a federal conditional grant is per se unconstitutional unless the governing statute anticipates every way in which the conditions could possibly be violated and creates enforcement mechanisms that directly and as narrowly as possible target each potential violation. While such a statute almost certainly would not be found to be unduly coercive, the Medicaid Act is not coercive simply because it fails to reach this idealized standard of specificity. The Medicaid Act is an “enormously complicated program[]. The system is a web; a tug at one strand pulls on every other.” Stephenson v. Shalala, 87 F.3d 350, 356 (9th Cir.1996). Given this complexity, there are untold ways in which a state plan might fail to comply with the Act and the governing regulations. To require the Act to create narrowly tailored enforcement mechanisms directed at each of the specific ways in which a plan might fail to comply would further complicate an already too complex statute. See Gray Panthers, 453 U.S. at 43, 101 S.Ct. 2633 (noting that “[t]he Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction ... makes the Act almost unintelligible to the uninitiated” (internal quotation marks omitted)); Friedman v. Berger, 547 F.2d 724, 727, n. 7 (2d Cir.1976) (lamenting the complexity of the Medicaid Act and its regulations and stating that “[tjhere should be no such form of reference as '45 C.F.R. § 248.3(c)(l)(ii)(B)(2)’ ...; a draftsman who" } ]

[ { "docid": "23570041", "title": "", "text": "and for several days thereafter was an amount considerably in excess of the cheek deposited. Gradually, however, these balances were reduced until, at the time of the failure, the account with the National City Bank showed an overdraft and that with the State Planters’ Bank & Trust Company a balance of only $3,866.08, which was applied on a $20,000 note.. The learned judge below found as a fact that the assets of the bank were increased and augmented by plaintiff’s money \"to the full extent of the $8,500 delivered to it for the purchase of bonds; that at all times thereafter it had on hand more than this amount of cash; and that plaintiff’s $8,500 was commingled with other assets of the bank and passed into the hands of the receiver along with the other assets. He thereupon declared the $8,500 claim of plaintiff a prior lien upon the cash which came into the hands of the receiver and directed that same be paid in full therefrom. The'receiver admits that the $8,500 was paid to the bank as a trust fund for the purchase of bonds for plaintiff, but denies that it has been traced into his hands. He contends, to the contrary, that he has shown that same was used, not to augment the assets of the bank, but merely to decrease its liabilities. The rule is well settled that where property or funds which are the subject, of a trust are used by a bank, in such way as merely to decrease its liabilities and not to augment its assets, no charge upon the assets arises in favor of the cestui que trust. Ellerbe v. Studebaker Corporation of America (C. C. A. 4th) 21 F.(2d) 993; First National Bank of Ventura v. Williams (D. C.) 15 F.(2d) 585; City Bank v. Blackmore (C. C. A. 6th) 75 F. 771. On the other hand, it is equally well settled that, where a bank acting as trustee mingles a trust fund with its other funds, the common fund resulting is impressed with a trust to the amount of the trust" } ]

[ { "docid": "13482502", "title": "", "text": "4th) 272 F. 117, 118, one of the eases cited by the Supreme Court in Van Huffel v. Harkelrode, the late Judge Woods, speaking for this Court, stated the rule as follows: “The power to sell a bankrupt’s property free from liens is not expressly conferred by the statute. But such a sale is often necessary to the due execution of the power and duty to reduce the assets to money and distribute it to creditors. This necessarily implied power of the court of bankruptcy as a court of equity has been asserted in numerous cases. 7 C. J. 231, § 359, note. At such sale the purchaser takes the same title as if the sale wei*e made in any other court of equity to foreclose the mortgages or to marshal the assets of an insolvent, with'all lienholders, and other parties in interest before the court. This title is good against the mortgagor, the mortgagees, and all their privies, including the wife of the mortgagor, who has renounced her dower. So, also, the proceeds of sale come into the hands of the bankrupt court for distribution among creditors precisely as if the mortgage had been formally foreclosed.” And see, also, Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645; Allebach v. Thomas (C. C. A. 4th) 16 F.(2d) 853; Union Electric Co. v. Hubbard (C. C. A. 4th) 242 F. 248; In re King (D. C.) 46 F.(2d) 112; In re Civic Center Realty Co. (D. C.) 26 F.(2d) 825; In re North Star Ice & Coal Co. (D. C.) 252 F. 301; Southern Loan & Trust Co. v. Benbow (D. C.) 96 F. 514; Collier on Bankruptcy (13th Ed.) vol. 2, p. 1758; Remington on Bankruptcy, §§ 2577, 2589; notes 35 A. L. R. 255, 258; 78 A. L. R. 458, 462. Whether the bankruptcy court shall exercise the power to sell incumbered property of the bankrupt free of liens, or sell merely the bankrupt’s equity of redemption subject to the incumbrances, is a matter resting in the sound" }, { "docid": "1384416", "title": "", "text": "and it will not avail the cestui that his moneys have gone to discharge debts of the trustee. For “the true rule is that the trust estate must be clearly traced into other specific property, in order that the cestui que trust may claim either the property itself, or a lien upon it.” Bank v. Weems, supra, 69 Tex. 499, 6 S. W. 802, 5 Am. St. Rep. 85; C. C. Chenault v. S. L. Baar, Trustee (C. C. A.) 54 F.(2d) 921; St. Louis & S. F. R. R. v. Spiller, 274 U. S. 311, 47 S. Ct. 635, 71 L. Ed. 1060. Appellants in argument here say that their case, like those of Davis and Oesterreicher, supra, is one where specific funds belonging to and held for them by their trustee, not dissipated or done away with, have passed, though commingled with others, in still identifiable form, into the hands of the receiver charged with the trust which characterized them in the hands of the Mortgage Company, and that, though the complaint-might have been more specifically and artfully laid, it does in substance declare upon these facts. We think appellants are right, for, while it is true that the original petition does not do so, it is equally true that the amended petition does clearly enough set down that there was an agreement between plaintiffs and the Mortgage & Securities Company that the proceeds of the loan secured upon the notes and mortgage should be held in trust by that Company until the completion of the building for which the money had been secured, and then paid over to the petitioner bank pursuant to an assignment of those proceeds made by Dixon and Kellogg to the bank and accepted by the Company. That on the 3d of August the building had been completed, the payment over of the trust funds had become due, and that, though on that date that company had the funds on hand, it failed to pay them over upon demand. That when the receivership was ordered on August 8, 1929 there were on hand," }, { "docid": "18555013", "title": "", "text": "did not surrender dominion of the proceeds because it was free to do whatever it wanted with them during the first seven days after receiving them. But we do not deem the right to hold funds up to seven days to be a reservation of unfettered dominion or control. Citing Collier on Bankruptcy, the trustee also argues that no equitable lien or assignment can be superior to the trustee’s interest unless the claimant can identify or trace the funds so charged. As we noted above, the trustee stipulated that CGI used the note’s proceeds to pay the American Bank of Maryland. Recovery of the preference thus was a recovery of the proceeds. See Mgrs. Finance Co. v. Armstrong, 78 F.2d 289, 291 (4 Cir.1935). Finally, the trustee contends that § 60(a)(6) of the Bankruptcy Act, 11 U.S.C. § 96, evidences “Congressional disfavor of equitable liens.” That section, however, addresses equitable liens arising because the creditor failed to meet the perfection requirements for legal liens. As we explained above, no perfection requirements apply to this assignment; it does not establish a security interest. Further, as the Ninth Circuit held in In re Destro, 675 F.2d 1037, 1040 (9 Cir.1982), § 60 is concerned with preferences, and the policy it articulates regarding equitable liens has, by the terms of the section, no application beyond the preference context. Accordingly, we reject the trustee’s objections and conclude that an equitable lien arose in Angeles’ favor on the facts of this case. Thus, Angeles may recover from the trustee under this theory, because a judgment lien creditor in Maryland takes subject to equitable charges against the debtor. Eastern Shore Bldg. & Loan Corp. v. Bank of Somerset, 253 Md. 525, 253 A.2d 367, 370 (1969). IV. In sum, we conclude that the Maryland courts would recognize either a legal or an equitable interest in Angeles’ favor under the circumstances of this case. Accordingly, Angeles’ claim to its assigned share of the proceeds is superior to the claim of the trustee. The trustee occupies the position of a judgment lien creditor, 11 U.S.C. § 544(a), and" }, { "docid": "21629185", "title": "", "text": "transfer of the good accounts, because the bankrupt merely did under compulsion what he should have done in the first place; and his estate would not have received the benefit of the money loaned, unless the Manufacturers’ Company had trusted him to. assign good accounts. * * * The ease at bar is similar to those which involve the doctrine of what is known’ as an 'equitable lien.’ Sexton v. Kessler, 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995.” We,,think the, referee was right, and the court wrong. Forged accounts are not part of a bankrupt estate; they are nothing. Sullivan’s warranty of title of the specifically described and assigned accounts cannot be extended into an equitable lien over undesignated, unassigned (and, for aught that appears, then nonexistent) accounts. The assignments were limited to specifically assigned accounts; they can no more be extended to cover, by way of equitable lien or any other right, undesignated accounts, than a chattel mortgage of furniture not owned can be extended to cover undescribed furniture actually owned. When Sullivan assigned valid receivables in substitution for forged receivables, he depleted his estate to that extent. Prior to the March transfer, what the Finance Company had was forgeries, plus Sullivan’s contract or covenant that they were valid. That contract or covenant cannot be related to the assignments in March. The theory urged, and in effect adopted by the court below, is that, because Sullivan procured money from the Finance Company on forged receivables, an equity then and there arose against all of Sullivan’s real assets of the same general nature, although un-’ mentioned either specifically or in general terms in the contract or instruments of assignment, and even if not then in existence. We regard this theory as unsound, on principle and authority. Undoubtedly valid equitable liens antedating the four months period are enforceable in bankruptcy. Thompson v. Fairbanks, 196 U. S. 516, 25 S. Ct. 306, 49 L. Ed. 577, Westall v. Wood, 212 Mass. 540, 99 N. E. 325. They are not transmuted into preferences by acts of appropriation and" }, { "docid": "11389741", "title": "", "text": "supra; Gross v. Irving Trust Co., 269 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243; Van Huffel v. Harkelrode, 284 U. S. 225, 52 S. Ct. 115, 76 L. Ed. 256, 78 A. L. R. 453; American Surety Co. v. Owens, 62 App. D. C. 210; 66 F.(2d) 190, 191. As stated in the American Surety Company Case: “The old rule with relation to tho right of a court which has taken possession of property to hold it and determine the rights of parties to it has no relation to tho retention of property by a court, state or federal, where bankruptcy has intervened and tho property in question is claimed by tho trustee appointed in the bankruptcy proceeding. The bankruptcy court, is entitled not only to the fund but may alone ascertain liens against it or rights to it. It being admitted the property belongs to the bankrupt estate, its jurisdiction is complete and exclusive, and it alone may determine the validity and amount of liens, and likewise may take the property wherever it finds it and determino the manner of its liquidation or disposal.” In the case of In re Grissler, 136 F. 754 (C. C. A. 2), the lien was being asserted against real estate which had not been in the possession of tho bankrupt subcontractor and which did not come into the custody of tho bankruptcy court. The bankruptcy court bad constructive possession of the debt due from the state to determine appellees’ liens. The second question presented, whether such possession completely ousts the state court of jurisdiction, was answered in the negative below; the court affirming the referee, basing its decision on the ground that the referee had no power to enjoin the lienors. Liens not filed before bankruptcy are valid if filed within the period provided by the state statute. N. Y. Brooklyn Fuel Corp. v. Fuller, 11 F.(2d) 802 (C. C. A. 2). We are not concerned with the validity of the liens, but the forum in which the validity may be asserted. The suit on the lien of appellee" }, { "docid": "1970334", "title": "", "text": "respects with reference to the assessments thus made. First, it is argued that the phrase “net proceeds realized” in Section 40, sub. c(2) of the Bankruptcy Act as amended, 11 U.S.C.A. § 68, sub. c(2), should be read as “net proceeds realized for the general estate”, and that the 3% assessment for the benefit of the referees’ salary and expense funds should not, therefore, be computed on the basis of funds ■coming into the estate subject to liens. If this argument be accepted, Section 40, sub. •c(2) as amended works a decided change in the law as it existed prior to 1947. The 1903 Amendment to the Bankruptcy Act liad as one purpose a change in the law •designed to permit referees to base their fees on the total moneys disbursed to creditors by trustees regardless of whether such «disbursements were to secured or unsecured creditors. In re Columbia Cotton Oil & Provision Corp., 4 Cir., 210 F. 824; Collier on Bankruptcy, 14th Ed., Sec. 40.06, p. 1551. There is nothing to indicate that •Congress, in 1946, intended to depart from the long established practice in this regard. Reading Section 40, sub. c(2), as amended, I believe it clear that “net proceeds realized” refers to the amount realized from the liquidation of the bankrupt’s assets, and not just to that portion thereof which constitutes the equity of the general creditors. That the Conference so •construed the phrase is apparent from the definition adopted by that body. In other words, “net proceeds realized” would be the balance remaining after the expenses incurred by a trustee in effecting a liquidation had been deducted from the total sale price of assets. The only cases which the court has found dealing with the question liave held that the assessments for the referees’ salary and expense funds should he computed upon all moneys coming into the estate whether subject to lien or not. Reconstruction Finance Corp. v. Cohen, 10 Cir., 179 F.2d 773; In re Stephen R. Jackson & Co., D.C.Del., 82 F.Supp. 966. This •court so holds. Secondly, petitioner claims that even if the" }, { "docid": "21629184", "title": "", "text": "ANDERSON, Circuit Judge. The facts of controlling importance in this bankruptcy preference case are within narrow compass. The bankrupt, Sullivan, assigned to the Finance Company about $60,000 of bills receivable, designated specifically. Of these, about $49,000 were forgeries. In March, 1925, the representative of the Finance Company examined Sullivan’s books, discovered the fraud, and procured from Sullivan, by way of-partial substitution for the forged accounts, assignments of about $10,000 of valid receivables. It is conceded that the Finance Company then had reasonable cause to believe Sullivan insolvent. Adjudication ensued the next month. The controversy is over the proceeds of the new and valid receivables thus assigned in March. The referee, whose jurisdiction is conceded, held the transaction a preference. The’Distriet Court (Lowell, J.) reversed the referee, saying: “The company lent its money on.the faith of the bankrupt’s assigning good accounts. When it discovered that the accounts were bad — in fact, had no'existence ■ — -it required him to do merely what he had agreed to do. His estate has not been depleted by the transfer of the good accounts, because the bankrupt merely did under compulsion what he should have done in the first place; and his estate would not have received the benefit of the money loaned, unless the Manufacturers’ Company had trusted him to. assign good accounts. * * * The ease at bar is similar to those which involve the doctrine of what is known’ as an 'equitable lien.’ Sexton v. Kessler, 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995.” We,,think the, referee was right, and the court wrong. Forged accounts are not part of a bankrupt estate; they are nothing. Sullivan’s warranty of title of the specifically described and assigned accounts cannot be extended into an equitable lien over undesignated, unassigned (and, for aught that appears, then nonexistent) accounts. The assignments were limited to specifically assigned accounts; they can no more be extended to cover, by way of equitable lien or any other right, undesignated accounts, than a chattel mortgage of furniture not owned can be extended to cover undescribed furniture" }, { "docid": "23302987", "title": "", "text": "Fire & Water Commissioners v. Wilkinson, 119 Mich. 655, 663, et seq., 78 N. W. 893, 44 L. R. A 493, and Frelinghuysen v. Nugent (C. C.) 36 Fed. 237, are in entire accord with the great weight of authority expository of the right to follow the trust funds when traced into specific property. In the first the authorities, federal and state, and English, are fully reviewed, and in both the same equitable doctrine is declared which is ruled in National Bank v. Insurance Company, 104 U. S. 54, 26 L. Ed. 693. See, Cook v. Tullis, 18 Wall. 332, 21 L. Ed. 933. If it could be justly claimed that the proofs failed to show that the funds of the township had gone into the property of the bankrupt, as was the fact in Frelinghuysen v. Nugent, supra, the finding of the referee upon the evidence ought not to be disturbed, nor should it be set aside upon a contradicted question of fact unless the referee’s error is clear. Oteri v. Scalzo, 145 U. S. 589, 12 Sup. Ct. 895, 36 L. Ed. 824. There the facts were not disputed, yet they were disregarded and a conclusion to the contrary was reached. No authority has been cited or found requiring the cestui que trust to show the apportionment of the trust fund between the various departments of the bankrupt’s business. It is sufficient to charge the property with an equitable lien in favor of the township that its moneys went into stock in trade of the bankrupt which came into the hands of the trustee. Cavin v. Gleason, 105 N. Y. 256, 11 N. E. 504. It is for the trustee to show that specific portions of that property were not purchased with the trust funds, and there is no evidence to that effect, except the single fart that the inventory did not include Reid’s lumber. This is, however, of no significance. “The lien of the cestui que trust is upon the mass for the value of the things converted.” Erie R. R. Co. v. Dial (C. C. A." }, { "docid": "3118097", "title": "", "text": "month, to receive $20,000 of the Candy Company’s common stock, and to have control of its business. He was to have the only key to the mailbox, open all mail, countersign all checks, remit all checks to appellant, pass on all purchases of raw material, approve all payments to creditors, and have full charge of the Candy Company’s books and records. The overdraft was paid, and the various terms of the verbal contract were performed in substance. Both parties operated under the verbal contract until October 6, 1932, when appellant notified the Candy Company that it would no longer handle its account, and shortly thereafter notified the debtors of the Candy Company that it held assignments of the company’s accounts and that payments thereon should be made direct to appellant. The filing of a voluntary petition in bankruptcy and receivership followed on October 31, 1932. The appellant filed a petition in which it asked that the receiver and trustee be ordered to turn over all money collected by them on the assigned accounts; that certain money collected by appellant under a court order entered April 11, 1933, be awarded to it; that it be accorded priority payment of the amounts so collected, and that it be decreed title to its assigned accounts that remain uncollected. The receiver answered that the $431.30 which he had collected on the accounts had been paid over to the trustee. The trustee, in his answer, asserted that all assignments from July 1, 1932, through October 6, 1932, are void under § 67 of the Bankruptcy Act, 11 U.S.C.A. § 107, for the reason that a lien was given the appellant in contemplation of bankruptcy with the intent unlawfully to hinder, delay and defraud creditors. He asked that all accounts assigned to the appellant ánd all moneys collected by it be turned over to the trustee; that certain expenses of the appellant defrayed with funds of the Candy Company be ordered to be repaid; that the amount of Bradley’s salary be repaid, and that a decree be entered in favor of the trustee for the total" }, { "docid": "1970335", "title": "", "text": "in 1946, intended to depart from the long established practice in this regard. Reading Section 40, sub. c(2), as amended, I believe it clear that “net proceeds realized” refers to the amount realized from the liquidation of the bankrupt’s assets, and not just to that portion thereof which constitutes the equity of the general creditors. That the Conference so •construed the phrase is apparent from the definition adopted by that body. In other words, “net proceeds realized” would be the balance remaining after the expenses incurred by a trustee in effecting a liquidation had been deducted from the total sale price of assets. The only cases which the court has found dealing with the question liave held that the assessments for the referees’ salary and expense funds should he computed upon all moneys coming into the estate whether subject to lien or not. Reconstruction Finance Corp. v. Cohen, 10 Cir., 179 F.2d 773; In re Stephen R. Jackson & Co., D.C.Del., 82 F.Supp. 966. This •court so holds. Secondly, petitioner claims that even if the 3% assessment be computed upon proceeds coming into the estate subj ect to liens, the assessment should be paid from funds of the general estate. The referee, on the other hand, takes the position that assessments levied on funds subject to lien must, under the terms of Section 40, sub. c(2) as amended and the Conference provision, be paid by the secured creditor. To sustain this position, the referee points to the fact that the Conference used the words, “the amount of money coming into the estate”, in defining “net proceeds realized” and finds therein a clearly expressed intent upon the part of the Conference that the 3% assessment be paid from funds due the secured creditor. I fail to see where this intent is any more clearly expressed in the 1946 Amendment and conference provision than it was in the law governing before 1947. Prior to 1947, Section 40 of the Bankruptcy Act, 11 U.S.C.A. § 68, sub. a provided for referees’ commissions of 1% “on all moneys disbursed to creditors by the trustee”." }, { "docid": "13482507", "title": "", "text": "reason, or one very good reason, for this forbearance, is that, unless more is produced by sale than the lien debt, there is nothing coming to the estate in bankruptcy; therefore the bankruptcy court does not meddle with what it can never administer.” And the following language used by the Circuit Court of Appeals of the Second Circuit in the receivership ease of Seaboard Nat. Bank v. Rogers Milk Products Co., 21 F.(2d) 414, 417, is pertinent where a sale free of liens cannot benefit the bankrupt estate: “There is no doubt but that there were enough valid bonds, so that no equity could remain for general creditors. We can conceive of no benefit which the estate in receivership could obtain by selling free of liens, and of no interest which the receivers could have in so selling, except to get fees for themselves and their attorneys. We wish to condemn in no uncertain terms the practice of permitting the receiver to sell free of liens and without the consent of the lienors, under such circumstances.” And to the same general effect are In re Civic Center Realty Co., supra; In re North Star Ice & Coal Co., supra; In re Cutler & John (D. C.) 228 F. 771; In re American Magnestone Co. (D. C.) 34 F.(2d) 681; In re Pittelkow (D. C.) 92 F. 901; 3 R. C. L. 306; 7 C. J. 231; Remington on Bankruptcy § 2383; Collier on Bankruptcy (13th Ed.) vol. 2, p. 1758; notes 35 A. L. R. at page 258, and 7S A. L. R. at page 462. The question as to whether a sale free of liens may include the inchoate right of dower of the wife of the banknpot is not presented' by this appeal. See Gantt v. Jones, supra (C. C. A.) 272 F. 117, and In re Glenn (D. C.) 2 F. Supp. 579, 588. But, certainly, where there is no equity for the estate, the court should not order the sale free of liens but subject to the inchoate dower right of the wife of the bankrupt," }, { "docid": "13482508", "title": "", "text": "circumstances.” And to the same general effect are In re Civic Center Realty Co., supra; In re North Star Ice & Coal Co., supra; In re Cutler & John (D. C.) 228 F. 771; In re American Magnestone Co. (D. C.) 34 F.(2d) 681; In re Pittelkow (D. C.) 92 F. 901; 3 R. C. L. 306; 7 C. J. 231; Remington on Bankruptcy § 2383; Collier on Bankruptcy (13th Ed.) vol. 2, p. 1758; notes 35 A. L. R. at page 258, and 7S A. L. R. at page 462. The question as to whether a sale free of liens may include the inchoate right of dower of the wife of the banknpot is not presented' by this appeal. See Gantt v. Jones, supra (C. C. A.) 272 F. 117, and In re Glenn (D. C.) 2 F. Supp. 579, 588. But, certainly, where there is no equity for the estate, the court should not order the sale free of liens but subject to the inchoate dower right of the wife of the bankrupt, and thus prevent the mortgagee from securing a foreclosure in which the land could be sold free of the dower right. The court below seems to have ignored the rule that a sale free of liens should be made only where there are reasonable grounds for believing that some advantage will accrue thereby to the estate of the bankrupt. At least there is no finding of facts from which it appears that the value of the mortgaged property is in excess of the amount of the mortgage debt or that it is in the interest of the bankrupt’s estate that the court assume charge of the mortgaged property and liquidate the liens against it. The opinion of the referee, adopted by the court, holds in effect that the court is without power to surrender the property to the lienholders in order that the mortgages against it may be liquidated by them; and in this, as we have seen, there was error. The order appealed from will be reversed, and the cause will be remanded to" }, { "docid": "13482503", "title": "", "text": "sale come into the hands of the bankrupt court for distribution among creditors precisely as if the mortgage had been formally foreclosed.” And see, also, Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645; Allebach v. Thomas (C. C. A. 4th) 16 F.(2d) 853; Union Electric Co. v. Hubbard (C. C. A. 4th) 242 F. 248; In re King (D. C.) 46 F.(2d) 112; In re Civic Center Realty Co. (D. C.) 26 F.(2d) 825; In re North Star Ice & Coal Co. (D. C.) 252 F. 301; Southern Loan & Trust Co. v. Benbow (D. C.) 96 F. 514; Collier on Bankruptcy (13th Ed.) vol. 2, p. 1758; Remington on Bankruptcy, §§ 2577, 2589; notes 35 A. L. R. 255, 258; 78 A. L. R. 458, 462. Whether the bankruptcy court shall exercise the power to sell incumbered property of the bankrupt free of liens, or sell merely the bankrupt’s equity of redemption subject to the incumbrances, is a matter resting in the sound discretion of the court. Allebach v. Thomas, supra; In re North Star Ice & Coal Co., supra; Sturgiss v. Corbin (C. C. A. 4th) 141 F. 1. But, ordinarily, the power to sell free of liens and thus in effect foreclose the mortgages should not be exercised, unless there is some equity for general creditors or some other benefit to the estate to be derived from this course. The liens of prior mortgages are not affected by bankruptcy; and, where they amount to more than the value of the property, the estate has no interest in their foreclosure, and should not be burdened with the costs and proceedings incident thereto. The rule applicable' was thus stated by this court in Union Electric Co. v. Hubbard, supra, 242 F. 248, 250: “Where the admitted and uncontested liens on any part or portion of the bankrupt estate clearly exceed the value of that property, so as that it is manifest that under no circumstances there can be any fund therefrom to be administered for the unsecured creditors," }, { "docid": "15212363", "title": "", "text": "uneontradicted evidence showed something much more than a mere promise to pay the appellees out of the proceeds of the collection, and in this we think he was right. Marlatt, one of the appellees, testified to a conversation with Peters, president of the bankrupt company, in which Peters stated, with respect to this and other collections, that whatever was collected should apply on the bill. This'was corroborated by Peters, who testified that he suggested to Marlatt that he turn over the Thiel account to his firm to collect and credit against their account; that this was designated for general work; that he told Marlatt that the Thiel account would probably carry him through whatever was owing. Polk, associated with the appellees, was present at a conversation between Peters and Marlatt when Peters stated, in substance, that he was giving his claim to Treadway & Marlatt as compensation for their services and whatever he would owe them in the future. None of this evidence was contradicted or impeached., Equitable liens, if given before the four months’ period preceding bankruptcy, are valid and enforceable against the trustee. Thompson v. Fairbanks, 196 U. S. 516, 25 S. Ct. 306, 49 L. Ed. 577; Sexton v. Kessler & Co., 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995; Foster v. Manufacturers’ Finance Company, 22 F.(2d) 609 (C. C. A. 1); Marshall v. Roettinger, 294 F. 158 (C. C. A. 6). The question here presented seems to be whether a parol assignment of specific funds not yet collected, but to be collected, creates an equitable lien upon such funds, valid as against a trustee in bankruptcy if collected after adjudication. Upo'n this question we consider the ease of Union Trust Co. v. Bulkeley, 150 F. 510 (C. C. A. 6), controlling. While the testimony of interested parties to an alleged parol assignment should undoubtedly be received with some caution, In re Macaulay, 158 F. 322 (D. C. Mich.) yet where such parol assignment is established by testimony which is uneontradicted and credible, by witnesses who are not impeached, and there are no" }, { "docid": "1970336", "title": "", "text": "3% assessment be computed upon proceeds coming into the estate subj ect to liens, the assessment should be paid from funds of the general estate. The referee, on the other hand, takes the position that assessments levied on funds subject to lien must, under the terms of Section 40, sub. c(2) as amended and the Conference provision, be paid by the secured creditor. To sustain this position, the referee points to the fact that the Conference used the words, “the amount of money coming into the estate”, in defining “net proceeds realized” and finds therein a clearly expressed intent upon the part of the Conference that the 3% assessment be paid from funds due the secured creditor. I fail to see where this intent is any more clearly expressed in the 1946 Amendment and conference provision than it was in the law governing before 1947. Prior to 1947, Section 40 of the Bankruptcy Act, 11 U.S.C.A. § 68, sub. a provided for referees’ commissions of 1% “on all moneys disbursed to creditors by the trustee”. While this was construed as permitting fees to be computed on the basis of payments made to both secured and unsecured creditors, there can be no question that it was not construed by the courts as making mandatory the payment of fees from funds due secured creditors. See 4 Collier on Bankruptcy, Sec. 70,99, pp. 1604— 1617. In Reconstruction Finance Corp. v. Cohen supra, 179 F.2d at page 776, the court had the following to say with respect to the present version of Section 40 of the Bankruptcy Act: “But Section 40, sub. c(2) of the Bankruptcy Act, supra, authorizing additional fees for the referee’s funds, does not concern itself with the question whether the fees in a case of this kind are paid out of funds available for the payment of a secured debt or from funds belonging to the general estate of the bankrupt. The exactions of the statute are satisfied when the full amount of the fees is charged against the estate and made available for coverage into the referee’s funds, whether" }, { "docid": "18555012", "title": "", "text": "Bd. of Educ., 15 F.2d 993, 995, (4 Cir.1926). In fact, under general common law principles, an equitable lien or equitable assignment arises whenever a debtor makes a specific appropriation of part of a specific fund to a creditor — when, in other words, the debtor relinquishes control of the part he promises to pay to his creditor. See, e.g., Union Trust Co. of Md. v. Town shend, 101 F.2d 903 (4 Cir.1939); Tobin v. Insurance Agency Co., 80 F.2d 241 (8 Cir.1935). Furthermore, Maryland recognizes equitable liens and holds that the controlling question is whether the parties intended to create a lien. Equitable Trust Co. v. Imbesi, 287 Md. 249, 412 A.2d 96 (1980). Here, the most reasonable construction of the agreement is that the parties intended that the assignee obtain a charge or lien upon half the proceeds of the promissory note. Angeles, the assignee, after all, demanded and received more than a mere promise to pay from those proceeds. It received an assignment of a one-half interest. The trustee objects that CGI did not surrender dominion of the proceeds because it was free to do whatever it wanted with them during the first seven days after receiving them. But we do not deem the right to hold funds up to seven days to be a reservation of unfettered dominion or control. Citing Collier on Bankruptcy, the trustee also argues that no equitable lien or assignment can be superior to the trustee’s interest unless the claimant can identify or trace the funds so charged. As we noted above, the trustee stipulated that CGI used the note’s proceeds to pay the American Bank of Maryland. Recovery of the preference thus was a recovery of the proceeds. See Mgrs. Finance Co. v. Armstrong, 78 F.2d 289, 291 (4 Cir.1935). Finally, the trustee contends that § 60(a)(6) of the Bankruptcy Act, 11 U.S.C. § 96, evidences “Congressional disfavor of equitable liens.” That section, however, addresses equitable liens arising because the creditor failed to meet the perfection requirements for legal liens. As we explained above, no perfection requirements apply to this assignment;" }, { "docid": "12381508", "title": "", "text": "Bank et al., 324 F.Supp. 1029 (1971): -“The financing statement does not ordinarily create a security interest. See Mid-Eastern Electronics, Inc., v. First National Bank, 380 F.2d 355, (4 CA 1967); American Card Company v. H. M. H. Company, 97 R.I. 59, 196 A.2d 150; Kaiser Aluminum & Chemical Sales, Inc., v. Hurst, 176 N.W.2d 166, (Iowa 1970); Central Arkansas Milk Producers Association v. Arnold, 239 Ark. 799, 394 S.W.2d 126, (1965). The Security Agreement creates and defines the security interest.” An unperfected security interest is subordinate to the rights of a lien creditor. The Trustee in Bankruptcy has the rights of a “lien creditor” from time of bankruptcy. (See 11 U.S.C.A. § 110(c) (1-3) and 12A O.S.A., See. 9-301(3). In In re Lehner, 303 F.Supp. 317, 318 (D.C.Colo. 1969), the court stated: “Sec. 70(c) of the Bankruptcy Act confers on the trustee the ‘status of a creditor then holding a lien by legal or equitable proceedings at the time of bankruptcy on all property on which a creditor of the bankrupt could have obtained such a lien at bankruptcy.’ 4A Collier, Bankruptcy, |f 70.45, at 558 (14th ed. 1969). This status gives the trustee the ability to challenge the validity of prior transfers, liens or encumbrances so that property not subject to perfected security interests may be included in the bankrupt’s estate.” The alternative suggestion, by the Petitioners, that although there may not have been a security interest perfected in law, they nevertheless were entitled to an equitable lien, must also fail. Whether an equitable lien exists at all is a question to be determined in accordance with state law. Collier on Bankruptcy, 4A:70.87(3) (14 Ed. 1969). This rule has been recognized by the Tenth Circuit in Seymour v. Wildgen, 137 F.2d 160 (CA 10 1943), in which the court held that what property belonged to the bankrupt as of the date of bankruptcy, what liens, if any, existed thereon, validity of such liens, order or priority among creditors having liens and other cognate questions are governed by the law of the state and not by any provision of" }, { "docid": "23220657", "title": "", "text": "77 N. E. 747, 6 Ann. Cas. 761, 5 L. R. A. (N. S.) 564 and note. The assignment in this case did not, therefore, create a lien upon the wages of the bankrupt at the time it was executed, but such lien was to arise at the timé the wages should be earned. Until then the assignment was no more than a contract of the bankrupt, the obligation of which was discharged by the bankruptcy in the same way that his other personal obligations were discharged. It is true that the rights of lienors under existing liens, not forbidden by the Bankruptcy Act are preserved by that act; but the trouble here is that there was no lien on the wages in question existing at the time of the filing of the petition in bankruptcy. The loan company held nothing but a debt against the bankrupt and a contract providing for the creation of a lien in the future when wages should be earned. Before this contract could give rise to a lien, its obligation was discharged by the bankruptcy; and the debt, without which no lien could exist, was discharged also. A few cases have held that under such' circumstances the assignment will be enforced notwithstanding the bankruptcy of the assignor. Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233; Citizens’ Loan Ass’n v. Boston & Maine Railroad, 196 Mass. 528, 82 N. E. 696, 14 L. R. A. (N. S.) 1025, 124 Am. St. Rep. 584, 13 Ann. Cas. 365. But, with due respect to the courts so holding, we do not think the decisions are sound. .The weight of reason and authority is to the contrary. In re West (D. C.) 128 F. 205, 206; In re Karns (D. C.) 148 F. 143; In re Home Discount Co. (D. C.) 147 F. 538, 547; In re Ludeke (D. C.) 171 F. 292; Progressive B. & L. Ass’n v. Hall (C. C. A. 4th) 220 F. 45; Levi v. Loevenhart & Co., 138 Ky. 133, 127" }, { "docid": "13878490", "title": "", "text": "upon all persons with notice who subsequently claim an interest in the fund under the debtor.’ ” It asked the question, Was there an agreement of the character indicated in this statement? and answered it in the affirmative. In Gorman v. Littlefield, 229 U. S. 19, 33 S. Ct. 690, 57 L. Ed. 1047, a broker agreed to buy a stock for a client, who had supplied him with the money for the purchase. Before delivering it, he became a bankrupt, and there were found in his possession certain shares “of the same stock, not set apart or designated' as the property of any client, and the court held that these shares should be considered the claimant’s property. In Greey v. Dockendorff, 231 U. S. 513, 34 S. Ct. 166, 58 L. Ed. 339, accounts had actually been assigned by formal written assignments by a bankrupt to secure advances from time to time in money to carry on his business. The court \"said the question was whether the money received on these accounts belonged to the trustee in bankruptcy or the assignee of the account. Under the circumstances, it was held that they belonged to the assignee. Whether or not an equitable lien has been established depends upon the faets peculiar to each ease. It may well be that the executors here turned over the'money upon the reliance that it would be returned when the funds were received from the mortgage then being negotiated; but that was insufficient to create a lien. No fund ever came into existence. On the other hand, there was every reason for the executors to advance the money in an effort to save the equity in the property and maintain the value of the stock of the Eahy Market, which they held. The evidence does not warrant supporting the claim of an equitable lien. It is argued that, since part of the loan was used to pay taxes due on the real prop erty, a preference should be granted to this ■extent. A mere volunteer, who pays a tax, cannot be subrogated to a tax" }, { "docid": "21812272", "title": "", "text": "complete, in order to validate an equitable lien. Tomlinson v. Bank of Lexington (C. C. A.) 145 F. 824 (Fourth Circuit); Union Trust Co. v. Bulkeley (C. C. A.) 150 F. 510; In re Harvey (D. C.) 212 F. 340. With respeet to the automobiles, there is no difficulty on this point, because all indicia of control and ownership was surrendered. But, as just stated, the court does not believe the evidence supports a finding that any equitable lien was created in the first instance with respeet to the cars, but there was a valid transfer of the accounts receivable. The assignment of these accounts, the court believes, on the authority of Chapman v. Emerson, 8 F.(2d) 353, and In re Almond Jones Co. (D. C.) 13 F.(2d) 152, the former a decision of the Circuit Court of Appeals for this circuit, and the latter a decision of this court, is adequate to constitute a transfer. The test as laid down in these cases, in the absence of any Maryland statute on the subject, is whether or not the actual arrangement was such that the assignee acquired actual dominion over the assigned accounts and their proceeds. The agreement to assign was effective to pass to the Trust Company the ownership of the accounts, and the subsequent entry of the assignment upon the bankrupt’s books, and the express promise to pay over to the assignee all money that might be collected on the accounts, confirmed the transfer. It should be noted at this point that the situation is not altered by the fact that the original note of October'31st was surrendered on November 21st, and a new collateral note for the same amount then given, because, under the Maryland law, collateral pledged on a note is not released by the renewal of such note. Flanagin v. Hambleton, 54 Md. 222, Williams v. National Bank, 72 Md. 441, 20 A. 191. Nor does the question of intervening creditors and their rights arise, in view of the construction which the Court gives to the assignment. Thus, since the Trust Company acquired, on or" } ]

[ { "docid": "5620523", "title": "", "text": "(1983)); see also Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1190-91 (5th Cir.1988). The decision whether to surrender jurisdiction because of parallel state court litigation does not rest on a “mechanical checklist” of these factors, but on a “careful balancing” of them, “as they apply in a given ease, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. (1) Assumption by Either Court of Jurisdiction Over a Res This case does not involve any res or property over which any court, state or federal, has taken control. The absence of this factor is not, however, a “neutral item, of no weight in the scales.” Evanston, 844 F.2d at 1191. Rather, the absence of this first factor weighs against abstention. Id. (2) The Relative Inconvenience of the Forums The federal and state court suits are both in south Texas. The parties agree that this factor is inapplicable. Therefore, its absence weighs against abstention. Id. (3) The Avoidance of Piecemeal Litigation These cases do not involve piecemeal litigation, i.e., there is “no more than one plaintiff, one defendant, and one issue.” St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590 (5th Cir.1994). The federal and state cases involve the same plaintiff, the same defendant, and the same issue, viz., whether Uncle Ben’s discriminated against Murphy in employment on the basis of age. This parallel litigation is duplicative, not piecemeal; “[t]he prevention of duplicative litigation is not a factor to be considered in an abstention determination.” Evanston, 844 F.2d at 1192 (citing Colorado River, 424 U.S. at 817, 96 S.Ct. 1236). The only bar to dual prosecution is dismissal due to res judicata. This factor weighs against abstention. (4) The Order in Which Jurisdiction Was Obtained By the Concurrent Forums The priority element of the Colorado River/Moses H. Cone balance “ ‘should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.’ ” Evanston, 844 F.2d at 1190 (quoting Moses H. Cone," } ]

[ { "docid": "15244075", "title": "", "text": "duty of federal courts to exercise the jurisdiction granted to them.” Canady, supra, 608 F.Supp. at 1473. The Court found that even in the absence of the other abstention doctrines, “federal courts ought to refuse to decide cases when considerations of ‘[w]ise judicial administration giving regard to conservation of judicial resources and comprehensive disposition of litigation,’ ... require abstention.” Levy, supra, 635 F.2d at 965 (quoting Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246) (citation omitted). The principle underlying Colorado River abstention is a prudential concern, “a second court with concurrent jurisdiction will exercise its discretion to defer to another court for the sake of comprehensive dispo sition of rights in a particular piece of property or in a fund.” Levy, supra, 635 F.2d at 966. The factors to be weighed by the federal courts in applying the Colorado River or “exceptional circumstances test” are: 1) The inconvenience of the federal forum; 2) Order in which jurisdiction was obtained by the forums; 3) Desirability of avoiding piecemeal litigation; 4) Presence or absence of substantial progress in the federal litigation; 5) Whether state or federal law provides the rule of decision on the merits; and 6) Adequacy of the state proceeding to protect the federal plaintiffs rights. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 15-16, 103 S.Ct. 927, 936-37, 74 L.Ed.2d 765 (1983) (citing, in part, Colorado River, supra, 424 U.S. at 818-19, 96 S.Ct. at 1246-47). These factors must not be applied mechanically, but instead should be balanced carefully, “with the balance heavily weighted in favor of the exercise of jurisdiction.” Id. at 16, 103 S.Ct. at 937.) The Court notes that jurisdiction over this dispute was first obtained by the State Supreme Court when the Superintendent commenced this action on April 29, 1985. Defendants did not seek arbitration until after the action was filed. Moreover, defendants waited almost four months before removing this action to this Court. There has not been substantial progress in the federal litigation. On the other hand, the Superintendent does not contend that the federal forum is" }, { "docid": "3885817", "title": "", "text": "“abstention,” we have referred to it as such, see, e.g., Oliver v. Fort Wayne Education Ass’n, 820 F.2d 913, 915 (7th Cir.1987). Colorado River abstention “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. These factors include “the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums,” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247 (citation omitted). In this case, as in Colorado River itself, the desirability of avoiding piecemeal litigation is paramount. The state-law issues in this case, which may obviate a decision on the federal issue, are being decided in a concurrent state proceeding. Thus, there is a “substantial likelihood that the state litigation will dispose of all claims present in the federal case,” Lumen Construction, Inc. v. Brant Construction Co., 780 F.2d 691, 695 (7th Cir.1985). In addition, as the plaintiffs concede in their supplemental brief, most of the cases that have construed the sections of the AFDC statute at issue here have been state cases. Like the field of water rights involved in Colorado River, the field of welfare benefits is one “peculiarly appropriate for comprehensive treatment in the forums having the greatest experience and expertise, assisted by state administrative officers acting under the state courts,” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. Because “extensive rights governed by state law,” id., are present in this suit, abstention under Colorado River was proper. In my view, the district court should have abstained from this case. I therefore join in the majority’s decision to remand the entire matter to state court. . Like the majority, I conclude that rules such as § 2283 and the exhaustion requirement" }, { "docid": "3454422", "title": "", "text": "of federal jurisdiction is the exception, not the rule,” and this “extraordinary and narrow exception” is only justified when it “would clearly serve an important countervailing interest.” Colorado River Water, 424 U.S. at 813, 96 S.Ct. 1236. As such, “[t]he decision to dismiss a federal action because of a parallel state-court action rests ‘on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.’ ” Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 886 (6th Cir.2002) (emphasis added) (quoting Moses H., 460 U.S. at 16, 103 S.Ct. 927). Courts consider roughly eight factors when determining whether abstention under Colorado River is necessary. PaineWebber, 276 F.3d at 206 (citing Romine v. Compuserve Corp., 160 F.3d 337, 340-41 (6th Cir.1998)). These factors are: (1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; ... (4) the order in which jurisdiction was obtained[;] ... (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiffs rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction. Id. (citing Romine, 160 F.3d at 340-41). Although a few of these factors weigh in favor of abstention, none are strong enough to make this case an exceptional circumstances necessitating abstention. Moreover, the factors identified as the most important counsel in favor of exercising its jurisdiction. The first two factors weigh against abstention. In a similar case where “the state court did not assume jurisdiction over any res or property,” and both courts are geographically convenient, the Sixth Circuit has found these facts support exercising jurisdiction. PaineWebber, 276 F.3d at 207. On the other hand, factors four, seven, and eight, favor abstention — but only very slightly. The state court assumed jurisdiction first, but only by a few months, and nothing in the record indicates the suit has progressed" }, { "docid": "17442232", "title": "", "text": "marks omitted). In Colorado River, the Court held that “in situations involving the contemporaneous exercise of concurrent jurisdiction,” a federal court, in “exceptional” circumstances, may abstain from exercising jurisdiction when parallel state-court litigation could result in “comprehensive disposition of litigation” and abstention would conserve judicial resources. Id. at 813, 817-18, 96 S.Ct. 1236 (internal brackets and quotation marks omitted). “[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors ... as they apply in a given case.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In evaluating whether Colorado River abstention is appropriate, a federal district court must consider six factors, “with the balance heavily weighted in favor of the exercise of jurisdiction.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 100 (2d Cir.2012) (quoting Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927) (internal quotation marks omitted). These six factors are (1) whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiffs federal rights. Woodford v. Cmty. Action Agency of Greene County, Inc., 239 F.3d 517, 522 (2d Cir.2001). The Supreme Court has explained that none of these factors alone is necessarily determinative, but, instead, a federal district court must engage in a “carefully considered judgments taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise ... Only the clearest of justifications will warrant dismissal.” Colorado River, 424 U.S. at 818-19, 96 S.Ct. 1236 (citation omitted); see also Moses H." }, { "docid": "2460855", "title": "", "text": "piecemeal litigation; and (4) the order in which jurisdiction was obtained. See 424 U.S. at 818-19, 96 S.Ct. 1236. In the case before it, the Colorado River Court upheld the district court’s order of dismissal, emphasizing the McCarran Amendments’ policy of avoiding 'piecemeal adjudication of water rights in a river system. See id. at 819, 96 S.Ct. 1236. In subsequent cases, the Supreme Court has identified at least four additional factors to be weighed in the balance. These include: (5) whether the source of governing law is state or federal, see Moses H. Cone, 460 U.S. at 23-26, 103 S.Ct. 927; (6) the adequacy of the state court action to protect the federal plaintiffs rights, see id. at 26-28, 103 S.Ct. 927; (7) the relative progress of the state and federal proceedings, see id. at 21-23, 103 S.Ct. 927; and (8) the presence or absence of concurrent jurisdiction, see Will v. Calvert Fire Ins. Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978). These factors, however, do not comprise a mechanical checklist. Rather, they require “a careful balancing of the important factors as they apply in a give case” depending on the particular facts at hand. Moses H. Cone, 460 U.S. at 15-16, 103 S.Ct. 927. See Baskin v. Bath Tp. Bd. of Zoning Appeals, 15 F.3d 569, 571 (6th Cir.1994). A careful balancing of the factors set forth by the Supreme Court requires us to conclude that in this ease, the district court’s decision to abstain in deference of the paral-lei state court proceedings did not constitute an abuse of discretion. The first factor to be weighed under the Colorado River test— whether the state court has assumed jurisdiction over any res or property—is inappo-site to the instant matter because no property is at issue; this factor thus weighs against abstention. Likewise, we cannot find that the federal forum in this case is any less convenient than the state forum, since both actions are pending in courthouses in the same city: Columbus, Ohio. This second faetor thus also counsels against federal abstention. Thereafter, however, our analysis strongly" }, { "docid": "8125501", "title": "", "text": "107 S.Ct. 1896, 95 L.Ed.2d 503 (1987). The practical reason for this deference is that Colorado River abstention requires an ad hoc balancing of a number of factors, and the district court generally has a better seat for an overview of whether the exercise of federal jurisdiction should be postponed until after the state court litigation is completed. There are several traditional categories of abstention. See Younger v. Harris, 401 U.S. 37, 43-57, 91 S.Ct. 746, 750-56, 27 L.Ed.2d 669 (1971) (pending state criminal proceeding); Burford v. Sun Oil Co., 319 U.S. 315, 317-34, 63 S.Ct. 1098, 1099-1108, 87 L.Ed. 1424 (1943) (abstention appropriate to avoid interference with attempts to establish coherent state policy and issues of peculiarly local concern); Railroad Comm’n v. Pullman Co., 312 U.S. 496, 498, 61 S.Ct. 643, 644, 85 L.Ed. 971 (1941) (federal court should abstain to avoid unnecessary resolution of a constitutional issue that might be mooted by state court construction of a state law). In Colorado River the Supreme Court held that abstention may be called for in cases involving “exceptional circumstances” that do not fit neatly within the above enumerated categories. See 424 U.S. at 817, 96 S.Ct. at 1246. This doctrine was more fully developed in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). It now requires examination of six factors: (1) assumption of jurisdiction over a res; (2) inconvenience of the forum; (3) avoidance of piecemeal litigation; (4) order in which the actions were filed; (5) the law that provides the rule of decision; and (6) protection of the federal plaintiff’s rights. In analyzing these factors, the Supreme Court admonishes that no single factor is necessarily decisive, and that the test “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; see also Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1246-47." }, { "docid": "1294050", "title": "", "text": "a “hard and fast rule” governing the appropriateness of abstention based on considerations of federalism, comity and judicial economy, but set forth factors for district courts to consider to determine whether to abstain, as follows: (1) whether the state or federal court has assumed jurisdiction over the res; (2) any inconvenience involved in litigating in the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; (5) whether federal or state law will provide the rule of decision; (6) the adequacy of the state court action to protect the federal plaintiffs rights; (7) the relative progress of the state and federal proceedings; (8) and the presence or absence of concurrent jurisdiction. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. These factors do not compose a mechanical checklist and instead, what is required is “a careful balancing of the important factors as they apply in a given case,” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; and since “the balance [is] heavily weighted in favor of the exercise of jurisdiction,” id. at 15, 103 S.Ct. at 936, then if a given factor does not weigh in favor of abstention, it is not merely a neutral factor but instead weighs against abstention, Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 738 (5th Cir.1999) (citing Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1190-91 (5th Cir.1988)). Defendant herein urges in support of his request for abstention that if this case (and the thirty-eight other federal court actions brought by Bank One against the state court plaintiffs) is allowed to proceed, there will be substantial piecemeal litigation resulting in an enormous waste of judicial resources which is patently unwarranted inasmuch as the state court action, which was commenced long before this case, can readily accommodate all the parties and provide a vehicle for the resolution of all the issues raised between all the parties involved in the challenged transactions, including the issue of arbitration. Defendant submits that abstention is not only advisable in view of these circumstances," }, { "docid": "14274154", "title": "", "text": "There are a number of factors that the court must consider when making the decision to refrain from exercising jurisdiction over an action. These factors include: 1) whether the state has assumed jurisdiction over property; 2) the inconvenience of the federal forum; 3) the desirability to avoiding piecemeal litigation; 4) the order in which jurisdiction was obtained by the concurrent forums; 5) the source of governing law, state or federal; 6) the adequacy of state court action to protect the federal plaintiffs rights; 7) the relative progress of state and federal proceedings; 8) the presence or absence of concurrent jurisdiction; 9) the availability of removal; 10) the vexatious or contrived nature of the federal claim. Lewis, No. 90-0291, slip op., 1991 WL 125993 (N.D.Ill. July 2, 1991). No single factor, however, is determinative. See Lumen, 780 F.2d at 694 (citing Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1246-47). As the Supreme Court warned, an analysis of the relevant factors “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply to a given case, with the balance heavily weighed in favor of jurisdiction.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Thus, we must balance these factors to determine whether “exceptional circumstances” exist in this case which would justify abstention under Colorado River. The Colorado River doctrine was created to “promote wise judicial administration giving regard to conservation of judicial resources and comprehensive disposition.” LaDuke, 879 F.2d at 1558. The state court litigation has been pending since 1988 and has consumed hundreds of hours and thousands of pages of work. The state complaint has been dismissed by the trial court. The complaint was partially reinstated on appeal and the appellate court’s decision is currently pending review before the Illinois Supreme Court. Both the state and federal complaints are based on the same facts. The central issue in both cases is whether the documents submitted by the defendants to the IDOT and other state and federal agencies contained false information" }, { "docid": "16673500", "title": "", "text": "decisions by district courts. In that ease, we held: Because theories of state and federal law, and expressions of federalism and comity, are so interrelated in the decision to abstain such dispositions are elevated to a level of importance dictating de novo appellate review. Id. at 676. Although the merits of Traugh-ber concerned Younger abstention, rather than Colorado River abstention, the Traugh-ber reasoning as to the standard of review has been applied to Colorado River abstention. See Heitmanis v. Austin, 899 F.2d 521, 527 (6th Cir.1990). IV. The Supreme Court first articulated the doctrine now known as Colorado River abstention in the case of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). This doctrine allows federal courts to abstain from deciding a federal court action in deference to a pending state court action. Such abstention, however, is only appropriate in extraordinary circumstances. Id, at 817, 96 S.Ct. at 1246. The Court clarified the doctrine in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). There, the Court reviewed the factors to be considered in determining whether abstention under Colorado River is appropriate. The Court listed five primary factors: . (1) whether federal or state law provides the basis for decision of the case; (2) whether either court has assumed jurisdiction over any res or property; (3) whether the federal forum is less convenient to the parties; (4) avoidance of piecemeal litigation; and (5) the order in which jurisdiction was obtained. Id., 460 U.S. at 15-16, 103 S.Ct. at 936-37. A court may also consider the progress that has been made in the state and federal actions. Id. These factors, however, do not comprise a mechanical checklist. Rather, they require “a careful balancing of the important factors as they apply in a given case, with the balance heavily weighed in favor of the exercise of jurisdiction.” Id. at 16, 103 S.Ct. at 937. This court’s first interpretation of the doctrine after the Moses H. Cone decision came in Crawley v. Hamilton" }, { "docid": "11266111", "title": "", "text": "to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest justifications,’ that can suffice under Colorado River to justify surrender of that jurisdiction.” Id. at 25-26, 103 S.Ct. at 941-43 (emphasis in original). The Supreme Court has identified several factors that a district court may consider when determining whether exceptional circumstances warrant abstention in light of parallel state proceedings. These factors are: (1) whether the state court has exercised in rem jurisdiction over property involved in the dispute; (2) the relative inconvenience of the federal and state forums; (3) the desirability of avoiding piecemeal litigation; (4) the order of the state and federal suits; (5) whether a federal question is at issue; (6) the adequacy of the state court to protect the federal plaintiffs rights; and (7) whether the state or federal case was brought as a “defensive reaction” to the other. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246; Moses H. Cone, 460 U.S. at 17-18 n. 20, 23, 26, 103 S.Ct. at 937-38 n. 20, 23, 26; see also McLaughlin, 955 F.2d at 934-35. The federal courts have been instructed not to use these factors as a “mechanical checklist,” but rather to weigh each factor according to the circumstances of each case “with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; see also Colorado River, 424 U.S. at 819, 96 S.Ct. at 1247 (“only the clearest of justifications will warrant dismissal”). However, before considering the factors identified in Colorado River and Moses H. Cone, the Court must first determine whether parallel state and federal proceedings actually exist. McLaughlin, 955 F.2d at 935. The state and federal cases “are parallel if substantially the same parties litigate substantially the same issues in different forums.” New Beckley Mining Corp. v. International Union, United Mine Workers of America, 946 F.2d 1072, 1073 (4th Cir.1991), cert. denied, 503 U.S. 971, 112 S.Ct. 1587, 118 L.Ed.2d 306 (1992). Plaintiff Jackson Hewitt argues that here the federal and state cases are not parallel because its claims against J2 are not" }, { "docid": "15244076", "title": "", "text": "of substantial progress in the federal litigation; 5) Whether state or federal law provides the rule of decision on the merits; and 6) Adequacy of the state proceeding to protect the federal plaintiffs rights. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 15-16, 103 S.Ct. 927, 936-37, 74 L.Ed.2d 765 (1983) (citing, in part, Colorado River, supra, 424 U.S. at 818-19, 96 S.Ct. at 1246-47). These factors must not be applied mechanically, but instead should be balanced carefully, “with the balance heavily weighted in favor of the exercise of jurisdiction.” Id. at 16, 103 S.Ct. at 937.) The Court notes that jurisdiction over this dispute was first obtained by the State Supreme Court when the Superintendent commenced this action on April 29, 1985. Defendants did not seek arbitration until after the action was filed. Moreover, defendants waited almost four months before removing this action to this Court. There has not been substantial progress in the federal litigation. On the other hand, the Superintendent does not contend that the federal forum is inconvenient. In any event, the other factors referred to by the Supreme Court in Moses H. Cone are more telling in this case. Even prior to Colorado River, federal courts, in an effort to avoid piecemeal litigation, have deferred in cases involving disposition of assets of insolvent companies, especially in the context of the insurance industry. See Levy, supra, 635 F.2d at 966. The Circuit Court cited the “strong prudential reasons for requiring that all claims brought against a single fund or pool of assets of an insolvent company should be heard in a single forum.” Id. (citation omitted). Of course, this case does not directly involve claims against the Fund or against the assets of Nassau, as managed by the Superintendent; however, for the reasons discussed earlier, these same policy concerns are implicated here. In addition to the need for unified proceedings for determining the disposition of Nassau’s assets, the federal policy—embodied in the McCarran-Ferguson Act—of delegating the regulation of insurance companies to the states, augurs in favor of the exercise of abstention under" }, { "docid": "3885816", "title": "", "text": "case did not obligate the district court to decide the federal claim. In my view, therefore, the fact that the state originally removed the case does not alter my conclusion that abstention under Younger was appropriate. Even if abstention under Younger were inappropriate, the district court should nevertheless have dismissed the case under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and Moses H. Cone Memorial Hos pital v. Mercury Construction, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In Colorado River, the Supreme Court held that a federal court may properly dismiss a case because of parallel state-court litigation based on “considerations of ‘[wjise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation’.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). Although the Court declined to term this type of dismissal “abstention,” we have referred to it as such, see, e.g., Oliver v. Fort Wayne Education Ass’n, 820 F.2d 913, 915 (7th Cir.1987). Colorado River abstention “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. These factors include “the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums,” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247 (citation omitted). In this case, as in Colorado River itself, the desirability of avoiding piecemeal litigation is paramount. The state-law issues in this case, which may obviate a decision on the federal issue, are being decided in a concurrent state proceeding. Thus, there" }, { "docid": "23498547", "title": "", "text": "discretion. Moses H. Cone, 460 U.S. at 19, 103 S.Ct. 927. In Colorado River, the Supreme Court explained that a district court may sometimes be justified in abstaining from exercising jurisdiction in deference to a parallel state-court proceeding. The Court noted, however, that “[ajbstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River, 424 U.S. at 813, 96 S.Ct. 1236. The Court explained that abstention was “justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” Id. (quotation omitted). The decision to dismiss a federal action because of a parallel state-court action rests “on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. The Supreme Court and this Circuit have identified a number of factors which district courts must consider when determining whether abstention is appropriate under the Colorado River doctrine. The list of relevant factors includes: (1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; ... (4) the order in which jurisdiction was obtained!;] ... (5) whether the source of governing law is state or federal; (6) the adequacy of the state-court action to protect the federal plaintiffs rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction. PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206 (6th Cir.2001) (quotation omitted) (compiling factors discussed in Supreme Court cases). Applying these factors, both the Supreme Court and this circuit have held that abstention is inappropriate in circumstances substantially similar to those presented by the instant case. Moses H. Cone, 460 U.S. at 29, 103 S.Ct. 927; Cohen, 276 F.3d at 209 (holding abstention was inappropriate in action by investment company to compel arbitration following filing of state-court fraud and conversion action" }, { "docid": "1294049", "title": "", "text": "of judicial resources. Id. (in exceptional and limited circumstances, federal court may dismiss federal suit in favor of state court action based on “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation”); see Black Sea Inv., Ltd. v. United Heritage Corp., 204 F.3d 647, 650 (5th Cir.2000) (“The Colorado River abstention doctrine is based on principles of federalism, comity, and conservation of judicial resources.”). The Supreme Court has emphasized that the Colorado River doctrine “represents an ‘extraordinary and narrow exception’ to the ‘virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.’” Black Sea, 204 F.3d at 650 (citations omitted). Hence, under the Colorado River doctrine, as reiterated by the Court in Moses H. Cone, “[ajbstention from the exercise of federal jurisdiction is the exception, not the rule,” Moses H. Cone, 460 U.S. at 13, 103 S.Ct. at 936, and “[ojnly the clearest of justifications will warrant dismissal,” id. at 15, 103 S.Ct. at 936. In Colorado River, the Supreme Court declined to prescribe a “hard and fast rule” governing the appropriateness of abstention based on considerations of federalism, comity and judicial economy, but set forth factors for district courts to consider to determine whether to abstain, as follows: (1) whether the state or federal court has assumed jurisdiction over the res; (2) any inconvenience involved in litigating in the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; (5) whether federal or state law will provide the rule of decision; (6) the adequacy of the state court action to protect the federal plaintiffs rights; (7) the relative progress of the state and federal proceedings; (8) and the presence or absence of concurrent jurisdiction. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. These factors do not compose a mechanical checklist and instead, what is required is “a careful balancing of the important factors as they apply in a given case,” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; and since “the balance" }, { "docid": "11367768", "title": "", "text": "(11th Cir.1996)). We will not reverse unless “the error [will] result in a substantial injustice to the Defendants.” Id. Abstention and Water Pollution Control Act The Colorado River doctrine of “exceptional circumstances” authorizes a federal “district court to dismiss or stay an action when there is an ongoing parallel action in state court.” LaDuke v. Burlington Northern Railroad Co., 879 F.2d 1556, 1558 (7th Cir.1989). The principles of this doctrine “rest on considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation’.” Colorado River, 424 U.S. at 817, 96 S.Ct. 1236 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 96 L.Ed. 200 (1952)). Although federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them” they may defer to a parallel state proceeding under “limited” and “exceptional” circumstances. Id. at 817-818, 96 S.Ct. 1236. Among the factors the district court should consider in determining whether such exceptional circumstances exist are: (1) the order in which the courts assumed jurisdiction over property; (2) the relative inconvenience of the fora; (3) the order in which jurisdiction was obtained and the relative progress of the two actions; (4) the desire to avoid piecemeal litigation; (5) whether federal law provides the rule of decision; ánd (6) whether the state court will adequately protect the rights of all parties. TranSouth Financial, 149 F.3d at 1294-5 (summarizing Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. 1, 16-26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). The decision whether to dismiss “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. The weight of each factor varies on a case-by-case basis, depending on the particularities of that case. Id. One factor alone can be the sole motivating reason for the abstention. Id. (noting that the desire to avoid piecemeal adjudication was the" }, { "docid": "13395875", "title": "", "text": "at 817, 96 S.Ct. at 1246. “Only the clearest of justifications” warrants abstention in favor of a concurrent state proceeding. Id. at 819, 96 S.Ct. at 1247. However, there are judicially created exceptions to federal jurisdiction; a district court can abstain from the assumption of jurisdiction over a suit in “exceptional circumstances.” Id. at 818-20, 96 S.Ct. at 1246-48. To determine whether the interest in the conservation of judicial resources and the comprehensive disposition of litigation should outweigh the obligation to exercise jurisdiction, the Court articulated four factors for a district court’s consideration: the difficulties posed when a state and federal court assume jurisdiction over the same res; the relative inconvenience of the federal forum; the need to avoid piecemeal litigation; and the order in which the state and federal proceedings were filed. Id. at 818, 96 S.Ct. at 1246-47. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Court applied the Colorado River “exceptional circumstances” test to the stay of a federal suit to compel arbitration. A parallel action on the underlying dispute was pending in state court. The Court again began its analysis with the same basic premise: “ ‘Abdication of the obligation to decide cases can be justified ... only in the exceptional circumstance where the order to the parties to repair to the State court would clearly serve an important countervailing interest.’” 460 U.S. at 14, 103 S.Ct. at 936 (quoting Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244). In Moses H. Cone the Court identified two other factors for determining the existence of “exceptional circumstances”: whether state or federal law provides the rule of. decision, and whether the state action protects the federal plaintiffs’ rights. 460 U.S. at 23, 26, 103 S.Ct. at 941, 942. Notably, the Court warned that, although the appropriateness of a stay of federal proceedings is determined by an evaluation of these factors, district courts ought not regard them as a mere checklist. Instead, the court must undertake a careful balancing of the pertinent considerations. Particular weight" }, { "docid": "486190", "title": "", "text": "Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959)). Colorado River permits federal courts to abstain from exercising their jurisdiction over a ease where “considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation’” so warrant. Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). The considerations discussed in Colorado River, and/or in Moses H. Gone, include the following: (1) whether the state or federal court has assumed jurisdiction over the res; (2) the inconveniences of the federal forum; (3) the desirability of avoiding piecemeal litigation; and (4) the order in which jurisdiction was obtained by the concurrent forums. Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937 (citing Colorado River, 424 U.S. at 818-820, 96 S.Ct. at 1246-1248). In Moses H. Cone the Supreme Court added an additional factor to the balance — (5) whether a federal policy is involved. Id. 460 U.S. at 23, 103 S.Ct. at 941. None of these factors are determinative; rather, they require “a careful balancing of the important factors as they apply in a given ease, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. Applying these considerations to the facts before it, the Court in Moses H. Cone concluded that the exceptional circumstances test of Colorado River was not met, and that therefore abstention was inappropriate. Id. 460 U.S. at 19, 103 S.Ct. at 938 (“[T]he first two factors mentioned in Colorado River are not present here_ The remaining factors — avoidance of piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums — far from supporting the stay, actually counsel against it.”). A careful review of the five factors enunciated in Moses H. Cone reveals that the district court should have ordered arbitration in this case. As in Moses H. Cone, the first factor, regarding the res, has" }, { "docid": "23320935", "title": "", "text": "not, without more, warrant staying exercise of federal jurisdiction.’ Colorado River, 424 U.S. at 816 [96 S.Ct. at 1245], In fact, ‘the pendency of an action in state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction_’ Id. at 817 [96 S.Ct. at 1246]. Rather, ‘[o]nly the clearest of justifications will warrant dismissal.’ Id. at 819 [96 S.Ct. at 1247].” Alliance of American Insurers v. Cuomo, 854 F.2d 591, 602 (2d Cir.1988). The Colorado River doctrine was more fully developed in Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Application of the Colorado River doctrine requires that the party seeking abstention demonstrate to the Court that the following six factors indicate that abstention is appropriate: (1) assumption of jurisdiction over a res; (2) inconvenience of the forum; (3) avoidance of piecemeal litigation; (4) order in which the actions were filed; (5) the law that provides the rule of decision; and (6) protection of the federal plaintiff’s rights. De Cisneros v. Younger, 871 F.2d 305, 307 (2d Cir.1989). However, determining whether abstention is appropriate “does not rest on a mechani cal checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, supra, 460 U.S. at 16, 103 S.Ct. at 937. The Court agrees with defendants that an analysis of the six Colorado River factors militates in favor of abstention in this action. The first two factors are insignificant in the instant action. There is no res, and there is no significant difference in convenience between the fora. The parallel state action is occurring across the street from this Court. An analysis of the third factor, avoidance of piecemeal litigation, requires a conclusion in favor of abstention. Schonberger has raised as defenses in the state action claims which are almost identical to those contained in counts 11-20 and 24. A resolution of those defenses by the state court will have a collateral" }, { "docid": "8021783", "title": "", "text": "not the rule.” Id. at 813, 96 S.Ct. 1236. Abdication of the obligation to decide cases under the doctrine of abstention can be justified “only in the exceptional circumstances where the order to the parties to repair to state court would clearly serve an important countervailing interest.” Id. The doctrine of abstention generally applies only to cases involving “considerations of proper constitutional adjudication [or] regard for federal-state relations ... in situations involving the contemporaneous exercise of concurrent jurisdictions.” Id. at 817, 96 S.Ct. 1236. The present case, however, presents neither a federal constitutional question nor an issue of federal-state comity. Nevertheless, it may still be appropriate for a federal district court to refrain from exercising jurisdiction on considerations of wise administration of judicial resources. “[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. Factors relevant to the decision include: 1) which court first assumed jurisdiction over the res; 2) the inconvenience of the federal forum; 3) the desirability of avoiding piecemeal litigation; 4) the order in which jurisdiction was obtained by the concurrent forums; 5) whether and to what extent federal law provides the rules of decision on the merits; and 6) the adequacy of the state proceedings in protecting the rights of the party invoking federal jurisdiction. See Colorado River, 424 U.S. at 818, 96 S.Ct. 1236; Moses H. Cone, 460 U.S. at 23, 26, 103 S.Ct. 927; Black Sea Inv., Ltd. v. United Heritage Corp., 204 F.3d 647, 650 (5th Cir.2000) (citation omitted). The first factor is not relevant to the present case as neither the state nor federal district court have assumed jurisdiction over any res or property. Although the second factor is applicable to the case at bar, neither party has raised the inconvenience of the federal forum as an issue. Because the federal court and the" }, { "docid": "1294051", "title": "", "text": "[is] heavily weighted in favor of the exercise of jurisdiction,” id. at 15, 103 S.Ct. at 936, then if a given factor does not weigh in favor of abstention, it is not merely a neutral factor but instead weighs against abstention, Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 738 (5th Cir.1999) (citing Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1190-91 (5th Cir.1988)). Defendant herein urges in support of his request for abstention that if this case (and the thirty-eight other federal court actions brought by Bank One against the state court plaintiffs) is allowed to proceed, there will be substantial piecemeal litigation resulting in an enormous waste of judicial resources which is patently unwarranted inasmuch as the state court action, which was commenced long before this case, can readily accommodate all the parties and provide a vehicle for the resolution of all the issues raised between all the parties involved in the challenged transactions, including the issue of arbitration. Defendant submits that abstention is not only advisable in view of these circumstances, but that it would be particularly appropriate in view of Bank One’s blatant maneuvering to avoid a “proper state court jurisdiction”. The court is unpersuaded. First, while the possibility of piecemeal litigation is evident, “the ‘piecemeal litigation’ factor is not applicable in the FAA context, where the overriding federal policy is ‘to give effect to ... arbitration agreementfs]’.” Safety Nat’l Cas. Corp. v. Bristol-Myers Squibb Co., 214 F.3d 562, 565-66 (5th Cir.2000) (quoting Moses H. Cone, 460 U.S. at 20, 103 S.Ct. 927, 74 L.Ed.2d 765); see also Snap-On Tools Corp. v. Mason, 18 F.3d 1261, 1265 (5th Cir.1994) (piecemeal litigation is sometimes “the inevitable result of congressional policy strongly favoring arbitration”); Black Sea, 204 F.3d at 650 (“A ‘clear federal policy ... [of] avoidance of piecemeal adjudication of water rights in a river system’ was ‘the most important factor’ in the Supreme Court’s decision to abstain in Colorado River.... Conversely, a clear Congressional policy ‘to move parties to an arbitrable dispute out of court and into arbitration as quickly and as easily as possible’" } ]

[ { "docid": "22069397", "title": "", "text": "v. Marvel Lighting Corp., 30 F.3d 507, 510-511 & n. 1 (4th Cir.) (deciding issue under ADEA as to “personnel decisions of a plainly delegable character”), cert. denied, - U.S. -, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994), while others have either permitted liability in an employee’s official capacity only, see Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir.1995); Garcia v. Elf Atochem North America, 28 F.3d 446, 451 n. 2 (5th Cir.1994), or left the issue an “open question,” Ball v. Renner, 54 F.3d 664, 668 (10th Cir.1995). In our independent examination of this issue, we find most significant the fact that when Congress amended the statute in 1991 to provide a detailed sliding scale of damages ranging from $50,000 for an employer of more than 14 and fewer than 101 employees, to $300,000 for employers with more than 500 employees, 42 U.S.C. § 1981a(b)(3), it made no reference as to the amount of damages, if any, that would be .payable by individuals. This strongly suggests that Congress did not contemplate that such damages would be assessed against individuals who are not themselves the employing entity. See Tomka, 66 F.3d at 1315; Maxwell’s, 991 F.2d at 587 n. 2; Ascolese v. Southeastern Pa. Transp. Auth., 902 F.Supp. 533, 540 (E.D.Pa.1995), modified on other grounds, 925 F.Supp. 351 (1996). Moreover, we note that Congress had previously expressed its concern about the impact of Title VII litigation on small busi nesses when it excluded businesses with fewer than fifteen employees from the definition of an “employer.” It is reasonable to infer that Congress’s concern in that regard applies as well to individuals. See Williams, 72 F.3d at 553; Tomka, 66 F.3d at 1314 (citing remarks of legislators indicating concern with burdens imposed upon small businesses forced to defend against Title VII suits); Miller, 991 F.2d at 587. For these reasons, as well as some of the others cited by the other circuits, we are persuaded that Congress did not intend to hold individual employees hable under Title VII. III. CONCLUSION For the foregoing reasons, we will reverse the district court’s" } ]

[ { "docid": "23451015", "title": "", "text": "that Congress intended to allow civil liability to run against individual employees. A few years later in Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-1078 (3rd Cir.1996), the Third Circuit found ... most significant the fact that when Congress amended the statute in 1991 to provide a detailed sliding scale of damages ranging from $50,000 for an employer of more than 14 and fewer than 101 employees, to $300,000 for employers with more than 500 employees, 42 U.S.C. § 1981a(b)(3), it made no reference as to the amount of damages, if any, that would be payable by individuals. This strongly suggests that Congress did not contemplate that such damages would be assessed against individuals who are not themselves the employing entity. (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1315 (2nd Cir.1995) and Maxwell’s Int’l Inc., 991 F.2d at 587 n. 2). The Court further “noted that Congress had previously expressed its concern about the impact of Title VII litigation on small businesses when it excluded businesses with fewer than fifteen employees from the definition of an ‘employer.’ It is reasonable to infer that Congress’s concern in that regard applies as well to individuals.” E.I. DuPont de Nemours and Co., 100 F.3d at 1077-1078; see also Powell v. Yellow Book USA Inc., 445 F.3d 1074, 1079 (8th Cir.2006)(“Title VII addresses the conduct of employers only and does not impose liability on co-workers.... ”); Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180 (4th Cir.1998) (The Title VII definition of employer must be read in the same fashion as the ADEA definition of employer. Title VII defines employer to include certain persons who employ fifteen or more workers and, like the ADEA, “any agent of such a person.” Compare 42 U.S.C. § 2000e(b), with 29 U.S.C. § 630(b); see also Wathen v. General Elec. Co., 115 F.3d 400, 404 n. 6 (6th Cir.1997) (noting that Title VII and ADEA “define ‘employer’ essentially the same way”); EEOC v. AIC Sec. Investig., Ltd., 55 F.3d 1276, 1280 n. 1 (7th Cir.1995) (noting that the two definitions are “essentially" }, { "docid": "22150163", "title": "", "text": "their individual capacities. The Fourth Circuit and the Ninth Circuit have already considered and rejected this argument. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, — U.S. -, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); Miller v. Maxwell’s International Inc., 991 F.2d 583, 587-88 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994). The Fourth Circuit noted that “[sjueh personal liability would place a heavy burden on those who routinely make personnel decisions for enterprises employing twenty or more persons, and we do not read the statute as imposing it. Instead, we read § 630(b) as an unremarkable expression of respondeat superior — that discriminatory personnel actions taken by an employer’s agent may create liability for the employer.” Birkbeck, 30 F.3d at 510. The Ninth Circuit observed that [t]he statutory scheme itself indicates that congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, and the ADEA limits liability to employers with twenty or more employees, in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. Miller, 991 F.2d at 587. Rejecting a similar argument, this court recently held that an individual supervisor who does not otherwise qualify as an employer cannot be held liable for a violation of Title VII. Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994). In doing so, we .cited for support the Ninth Circuit’s reasoning in Miller. 21 F.3d at 652. The statutory scheme of Title VII at issue in Grant is virtually identical to the statutory scheme of the ADEA at issue here. Both acts limit liability to employers with more than a minimum number of employees, and both define “employer” to include agents of the employer. The plaintiffs have directed us" }, { "docid": "10388995", "title": "", "text": "Us, Inc, 132 N.J. 587, 624-25, 626 A.2d 445 (1993) (in construing the NJLAD, the New Jersey Supreme Court “frequently” looks to Title VII as “a key source of interpretive authority”). However, the legal foundations for the imposition of individual liability under the two statutes are different. Under Title VII, the basis for imposing individual liability (prior to Sheridan) was the “any agent” language discussed above. The Third Circuit did not explain the reasons behind its determination in Sheridan to prohibit individual liability under Title VII. But the cases it cites, such as Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.1995) and Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir.1993), have premised their result on a narrow statutory reading of Title VII. First, these courts have pointed out that the statutory scheme of Title VII limits liability to those employers with fifteen or more employees. This limitation is present in part because “Congress did not want to burden small entities with the costs associated with litigating discrimination claims.” Miller, 991 F.2d at 587 (9th Cir.1993) (concluding that the term “agents” in the statute serves only to incorporate respondeat superior liability). This concern is argued to apply with equal or greater force to individual defendants. Second, Title VII calibrates the maximum allowable damage award to the size of the employer, but makes no provision for individual damage awards. The statute creates a sliding scale of maximum liability, ranging from a cap in damages at $50,000 for employers with fewer than 101 employees to a cap of $300,000 for employers with more than 500 employees. Nowhere are individuals assigned a place in this range. Courts have concluded that this omission signals Congress’s desire to exclude individual liability. Miller, 991 F.2d at 587-88, n. 2. Although these arguments have been held to be dispositive under Title VII, neither of them applies to the very different statutory scheme set forth in the NJLAD. The New Jersey statute must therefore be analyzed separately. N.J.S.A. 10:5-12 defines those acts which create an “unlawful employment practice” or “unlawful discrimination.” In its various" }, { "docid": "4677805", "title": "", "text": "Bridges court to conclude that Title VII authorized individual liability. Bridges, 800 F.Supp. at 1180. The court in Wilson, by contrast, relies on the availability of compensatory and punitive damages as the sole basis for concluding that Busby — the law in the Eleventh Circuit at this time — is no longer valid. This court disagrees with the holding in Wilson and believes that the Eleventh Circuit, when it is faced with the issue, will hold that Busby remains good law, notwithstanding the availability of damages that an individual defendant can provide. In reaching its conclusion, the court is guided by the reasoning of the Ninth Circuit Court of Appeals — the first and only circuit squarely to address Smith’s argument — in Miller v. Maxwell’s Intern. Inc., 991 F.2d 583 (9th Cir.1993), cert, denied, — U.S. -, 114 S.Ct. 1049 (1994). Prior to the amendment of Title VII by the Civil Rights Act of 1991, the Ninth Circuit held, as did the Eleventh Circuit in Busby, that individuals could not be held liable under Title VII. Thus, the decision in Miller — that no individual liability exists under Title VII even after the effective date of the 19911 amendments — is a more logically persuasive one for this court than the Bridges decision relied on in Wilson. The Miller court found two bases from which to conclude that Congress did not intend, either before or after the 1991 amendments, to impose individual liability on employees. First, the Miller court relied on the fact that Title VII has always limited liability to employers with 15 or more employees. 42 U.S.C.A. § 2000e(b). The court concluded from this limitation that “Congress did not want to burden small entities with the costs associated with litigating discrimination claims.” Id. at 587. “If Congress decided to protect small entities with limited resources from liability,” the court continued, “it is inconceivable that Congress intended to allow civil liability to run against individual employees.” Id. This court similarly finds no basis to conclude from the statutory scheme that Congress intended to exempt small employers but impose" }, { "docid": "22914146", "title": "", "text": "VII remedies clarifies Congress’ intent that individual supervisors be held personally liable for their discriminatory actions. While this argument, considered in isolation, has some appeal, we agree with the majority view that, taken as a whole, the language and structure of amended Title VII continue to reflect the legislative judgment that statutory liability is appropriately borne by employers, not individual supervisors. The following excerpts explain the reasoning behind this conclusion: [T]he Civil Rights Act of 1991 further shows that Congress never intended individual liability. First, ... [i]t is a long stretch to conclude that Congress silently intended to abruptly change its earlier vision [of exclusive employer liability] through an amendment to the remedial portions of the statute alone. Second, although it allowed new types of damages, the Civil Rights Act of 1991 limited the amount of monetary recovery under Title VII ... by placing caps on the total amount of compensatory and punitive damages that could be awarded to any complaining party. Congress enacted a sliding scale of caps, increasing the possible award as the number of employees of a liable party increased. The lowest cap is $50,000, “in the case of a respondent who has more than 14 but fewer than 101 employees.” 42 U.S.C. § 1981a(b)(3)(A). Congress enacted no cap for individuals. That omission implies it did not consider individuals liable. United States EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995); accord Tomka, 66 F.3d at 1315 (“In addition [to the above concerns], the CRA of 1991 does not ... even address the subject of individual liability.”). Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. [I]f Congress had envisioned individual liability under Title VII for compensatory or punitive damages, it would have included individuals in [the amended statute’s] litany of limitations and would have discontinued the exemption for small employers. ... Miller, 991 F.2d at 587-88 & n. 2." }, { "docid": "22914147", "title": "", "text": "number of employees of a liable party increased. The lowest cap is $50,000, “in the case of a respondent who has more than 14 but fewer than 101 employees.” 42 U.S.C. § 1981a(b)(3)(A). Congress enacted no cap for individuals. That omission implies it did not consider individuals liable. United States EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995); accord Tomka, 66 F.3d at 1315 (“In addition [to the above concerns], the CRA of 1991 does not ... even address the subject of individual liability.”). Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. [I]f Congress had envisioned individual liability under Title VII for compensatory or punitive damages, it would have included individuals in [the amended statute’s] litany of limitations and would have discontinued the exemption for small employers. ... Miller, 991 F.2d at 587-88 & n. 2. Accordingly, we continue to adhere to this court’s established, pre-amendment rule that personal capacity suits against individual supervisors are inappropriate under Title VII. Sauers, 1 F.3d at 1125. “[T]he employment discrimination statutes have broad remedial purposes and should be interpreted liberally, but that cannot trump the narrow, focused conclusion we draw from the structure and logic of the statutes.” AIC Sec. Investigations, Ltd., 55 F.3d at 1282. “Congress has struck a balance between deterrence and societal cost, and we will not upset that balance.” Id. The judgment of the United States District Court for the Western District of Oklahoma is REVERSED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. . See, e.g., Williams v. Banning, 72 F.3d 552, 553-55 (7th Cir.1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C.Cir.), cert." }, { "docid": "2311937", "title": "", "text": "1554, 1557-58 (11th Cir.1987); Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989) (citing Sparks v. Pilot Freight Carriers, supra, aff'd in pertinent part, 900 F.2d 27 (4th Cir.1990) (en banc)); Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir.1986) (citing Jones v. Metropolitan Denver Sewage Disposal Dist., 537 F.Supp. 966, 970 (D.Colo.1982) (citing Bradley v. Rockland County Community Mental Health Center, 25 F.E.P.C. 225, 24 E.P.D. ¶ 31,321, 1980 WL 250 (S.D.N.Y.1980))); Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178, 186 (6th Cir.1992) (citing Paroline, supra), cert. denied, — U.S. -, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (citing Paroline, supra); contra Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587-88 (9th Cir.1993) (citing Padway v. Palches, 665 F.2d 965, 968 (9th Cir.1982)). In Miller, the Ninth Circuit stated, The statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), and the ADEA limits liability to employers with twenty or more employees, 29 U.S.C. § 630(b), in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against 'individual employees. Miller v. Maxwell’s Int’l, supra, 991 F.2d at 587. The Ninth Circuit cited no authority for its conclusion that section 2000e(b) was intended to protect “small entities” rather than small businesses. This court respectfully notes that it is “conceivable,” and much more likely, that the size restriction contained in section 2000e(b) was intended to protect small family-run businesses from discriminatory hiring claims based on then-preference for hiring friends and relatives. See Armbruster v. Quinn, 711 F.2d 1332, 1337 n. 4 (6th Cir.1983) (citing Remarks of Senator Fannin, 118 Cong.Rec. 2409-10 (1972), and Remarks of Senator Ervin, 118 Cong.Rec. 3171 (1972), in Subcommittee on Labor-Senate Committee on Labor and Public Welfare Legislative History of" }, { "docid": "22229239", "title": "", "text": "1391, 1399 (D.C.Cir.), cert. denied, (1995) (rejecting plain language argument). E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281-82 (7th Cir.1995) (same); Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (same). An examination of the statutory scheme and remedial provisions of Title VII, convinces us that Congress did not intend to provide for individual employee/supervisor liability under Title VII. 2. Statutory Scheme and Remedial Provisions The majority of courts addressing this issue have concluded that “[t]he obvious pur pose of this agent provision was to incorporate respondeat superior liability into the statute.” Miller, 991 F.2d at 587 (internal quotation marks omitted). See also Gary, 59 F.3d at 1399; AIC Security, 55 F.3d at 1281; Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994). This common interpretation of the scope of the agent clause in Title VII finds support in the Supreme Court’s discussion in Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986), wherein the Court stated that “Congress’ [sic] decision to define ‘employer’ to include any ‘agent’ of an employer ... surely evinces an intent to place some limits on the acts of the employees for which employers under Title VII are to be held responsible.” Id. at 72, 106 S.Ct. at 2408. Notably, while the Supreme Court found that Congress’s purpose in including “agent” in the definition of employer was to define the scope of liability of the employer, it said nothing about any liability on the part of the employee/agent. Moreover, the statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), “in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims.” Miller, 991 F.2d at 587. We agree with the Second Circuit’s conclusion that it is “ ‘inconceivable’ that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees.” Tomka, 66 F.3d at 1814 (citing with approval Miller, 991" }, { "docid": "23451014", "title": "", "text": "... .inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.”); see also Albra v. Advan, Inc., 490 F.3d 826, 830 (11 th Cir.2007); Williams v. Banning, 72 F.3d 552, 555 (7th Cir.1995)(“Because a supervisor does not, in his individual capacity, fall within Title VII’s definition of employer, [Appellant] can state no set of facts which would enable her to recover under the statute.”). Specifically, in Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the Ninth Circuit held that Title VII’s ... statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), ..., in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. A few years later in Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-1078 (3rd Cir.1996), the Third Circuit found ... most significant the fact that when Congress amended the statute in 1991 to provide a detailed sliding scale of damages ranging from $50,000 for an employer of more than 14 and fewer than 101 employees, to $300,000 for employers with more than 500 employees, 42 U.S.C. § 1981a(b)(3), it made no reference as to the amount of damages, if any, that would be payable by individuals. This strongly suggests that Congress did not contemplate that such damages would be assessed against individuals who are not themselves the employing entity. (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1315 (2nd Cir.1995) and Maxwell’s Int’l Inc., 991 F.2d at 587 n. 2). The Court further “noted that Congress had previously expressed its concern about the impact of Title VII litigation on small businesses when it excluded businesses with fewer than fifteen" }, { "docid": "950584", "title": "", "text": "at 529 citing 42 U.S.C. §§ 2000e-2(a), (b). As previously noted, Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person.” 42 U.S.C. § 2000e(b). The Pelech court recognized that the language “any agent” includes immediate supervisors as “employers” when such supervisors are delegated an employer’s traditional rights, such as hiring and firing. 828 F.Supp. at 529. See also Harvey v. Blake, 913 F.2d 226, 227 (5th Cir.1990). However, both the court in Pelech and in Weiss relied on the Fifth Circuit’s reasoning in Harvey that a supervisor liable as an employer’s agent is really a surrogate for the employer, and thus only liable in his official, as opposed to his individual, capacity. Pelech, 828 F.Supp. at 529; Weiss, 772 F.Supp. at 410-11. Suing an individual supervisory employee in his official capacity is the equivalent of suing the employer. The notion that a supervisor liable as an employer’s agent is really a surrogate for the employer and thus only liable in his official capacity is further supported by Title VU’s statutory scheme. In Miller v. Maxwell’s International, Inc., 991 F.2d 583 (9th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the Ninth Circuit explained that the statutory scheme of Title VII indicates that Congress did not intend to impose Title VII liability on individual employees because Congress limited Title VII liability to employers with fifteen or more employees. 991 F.2d at 587, citing 42 U.S.C. § 2000e(b). The MiUer court noted, “[i]f Congress decided to protect small entities with limited resources from liability, it is inconceivable that it intended to allow civil liability to run against individual employees.” 991 F.2d at 587. The compensatory and punitive damage caps in the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3) (Supp.1994), which are based on the size of the respondent employer, further supports the conclusion that individual supervisory employees are not meant to be subject to liability under Title VII. Miller, 991 F.2d at 587 n. 2 citing 42 U.S.C. §" }, { "docid": "950585", "title": "", "text": "liable in his official capacity is further supported by Title VU’s statutory scheme. In Miller v. Maxwell’s International, Inc., 991 F.2d 583 (9th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the Ninth Circuit explained that the statutory scheme of Title VII indicates that Congress did not intend to impose Title VII liability on individual employees because Congress limited Title VII liability to employers with fifteen or more employees. 991 F.2d at 587, citing 42 U.S.C. § 2000e(b). The MiUer court noted, “[i]f Congress decided to protect small entities with limited resources from liability, it is inconceivable that it intended to allow civil liability to run against individual employees.” 991 F.2d at 587. The compensatory and punitive damage caps in the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3) (Supp.1994), which are based on the size of the respondent employer, further supports the conclusion that individual supervisory employees are not meant to be subject to liability under Title VII. Miller, 991 F.2d at 587 n. 2 citing 42 U.S.C. § 1981a(b)(3). In addition to the Fifth and Ninth Circuits, the Tenth and Eleventh Circuits have also held that “[t]he relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act____ [T]he proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (citations omitted). See also, Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993). However, other circuit courts and other courts in this district have rejected the rationale that an agent of an employer may not be held personally liable under Title VII for action taken on the employer’s behalf. Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), vacated in part on reh’g, 900 F.2d 27 (4th Cir.1990); Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986); Raiser v. O’Shaughnessy, 830 F.Supp. 1134, 1137 (N.D.Ill.1993) (Moran J.);" }, { "docid": "23451013", "title": "", "text": "determining” this issue. Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 191 n. 4 (1st Cir.2003)(quoting Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997)). Title VII defines “employer”, in relevant part, as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person.” 42 U.S.C. § 2000e(b). Since the issue arises when a suit is filed against the employer’s employees in their individual capacities, we therefore must analyze and determine whether the employees may be held liable as “agents” of the employing entity. In other words, we must determine whether Title VII by including in the definition of employer, “any agent of such a person”, intended for said “agents” to be subject to liability for engaging in the proscribed discriminatory acts. 42 U.S.C. § 2000e-2. Most circuit courts have held that no personal liability can be attached to agents under Title VII. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.l991)(“Individual capacity suits under Title VII are ... .inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.”); see also Albra v. Advan, Inc., 490 F.3d 826, 830 (11 th Cir.2007); Williams v. Banning, 72 F.3d 552, 555 (7th Cir.1995)(“Because a supervisor does not, in his individual capacity, fall within Title VII’s definition of employer, [Appellant] can state no set of facts which would enable her to recover under the statute.”). Specifically, in Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the Ninth Circuit held that Title VII’s ... statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), ..., in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable" }, { "docid": "913990", "title": "", "text": "affecting commerce who has fifteen or more employees ... and any agent of such a person____ 42 U.S.C. § 2000e (emphasis added). From the plain language of the statute it would seem that an agent of the employer is personally and individually liable for discriminatory acts. However, Dr. Graue bases his argument against individual liability on the holdings of various circuit and district courts. The most popular argument for the Defendant’s position is presented by the Ninth Circuit Court of Appeals. In Miller v. Maxwell’s International, Inc., et al., 991 F.2d 583 (9th Cir.1993), the Ninth Circuit squarely addresses the issue of individual liability under Title VII. The district court had analyzed the statutory language and concluded as we do that the text of the statute did not preclude individual liability. Id. at 587. The Ninth Circuit acknowledged the merits of this statutory construction but proceeded with its own analysis. That analysis begins with a study of the limits placed on employer liability under the statute. The statutory scheme itself indicates that Congress did not intend to impose individual liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b) ... in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. Id. The Miller court also relied on precedents in the Ninth Circuit which held that “individual defendants could not be held liable for back pay.” See Padway v. Palches, 665 F.2d 965, 968 (9th Cir.1982). The Padway court had found it significant that Title VII (at that time) allowed only for injunctive relief, including back pay. Id. Dr. Graue argues that a co-employee supervisor, such as himself is not in the position to be able to grant reinstatement or back pay, and therefore should not be liable under Title VII. The problem with the Defendant’s back pay argument is that under the Civil Rights Act of 1991, a plaintiff is not limited to reinstatement or" }, { "docid": "12730714", "title": "", "text": "VII); Wathen v. General Elec. Co., 115 F.3d 400, 405-06 (6th Cir.1997) (same); Haynes v. Williams, 88 F.3d 898 (10th Cir.1996) (same); Dici v. Com. of Pa., 91 F.3d 542 (3rd Cir.1996) (same); Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir.1995) (same); Gary v. Long, 59 F.3d 1391 (D.C.Cir.1995) (same); Lenhardt v. Basic Inst. of Tech., Inc., 55 F.3d 377 (8th Cir.1995) (same); Smith v. Lomax, 45 F.3d 402 (11th Cir.1995) (same); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994) (same); Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583 (9th Cir.1993) (same). Like the majority of the circuit courts, this District has generally held that individual defendants are not liable under Title VII. See Canabal v. Aramark Corp., 48 F.Supp.2d 94, 95-98 (D.Puerto Rico 1999) (Pieras, J.); Acevedo Vargas v. Colon, 2 F.Supp.2d at 206; Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 92-93 (D.Puerto Rico 1997); Hernandez v. Wangen, 938 F.Supp. 1052 (D.Puerto Rico 1996); Anonymous v. Legal Serv. Corp., 932 F.Supp. at 50-51. The Court is compelled by the reasoning of previous decisions within this District. Title VII’s statutory structure suggests that Congress did not intend to impose individual liability over supervisors or agents of employers. See Acevedo Vargas v. Colon, 2 F.Supp.2d at 206. Liability under the statute is triggered only when the defendant/employer retains fifteen or more employees. See 42 U.S.C. § 2000e. In establishing this threshold, Congress sought to protect small entities. See Tomka v. Seiler Corp., 66 F.3d at 1319. Thus, “ ‘[i]f Congress decided to protect such entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liabilities to run against individual employees.’ ” Acevedo Vargas v. Colon, 2 F.Supp.2d at 206-07 (citing Miller, 991 F.2d at 587). Further, because liability under Title VII hinges on retaining 15 or more employees, in order to hold an individual liable, the employing entity would have to retain at least 15 employees. If that number is not surpassed, individuals would not be subject to liability. Therefore, individual liability derives from the employer’s exposure to liability, which is limited," }, { "docid": "22229240", "title": "", "text": "to include any ‘agent’ of an employer ... surely evinces an intent to place some limits on the acts of the employees for which employers under Title VII are to be held responsible.” Id. at 72, 106 S.Ct. at 2408. Notably, while the Supreme Court found that Congress’s purpose in including “agent” in the definition of employer was to define the scope of liability of the employer, it said nothing about any liability on the part of the employee/agent. Moreover, the statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), “in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims.” Miller, 991 F.2d at 587. We agree with the Second Circuit’s conclusion that it is “ ‘inconceivable’ that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees.” Tomka, 66 F.3d at 1814 (citing with approval Miller, 991 F.2d at 587). Additionally, as the Second Circuit noted, the legislative history indicates that in the floor debates over § 2000e(b), no mention was made of agent liability, further “implying that Congress did not contemplate agent liability under Title VII.” 66 F.3d at 1314. Finally, we find that Title VU’s remedial provisions are incompatible with the imposition of liability on individual employees for violations of the Act. Before Congress enacted the Civil Rights Act of 1991, 42 U.S.C. § 1981a (“CRA of 1991”), a successful Title VII plaintiff was limited to reinstatement and back pay — remedies available only from an employer. See Tomka, 66 F.3d at 1314; AIC Security, 55 F.3d at 1281. This limitation on the available remedies suggests that Congress did not intend to allow recoveries against individual employees under Title VII prior to its 1991 amendment. When Congress enacted the CRA of 1991, it added compensatory and punitive damages for intentional discrimination under Title VII. However, Congress calibrated the amounts of compensatory and punitive damages recoverable to the size of the" }, { "docid": "866247", "title": "", "text": "outlined by the Ninth Circuit in Miller v. Maxwell’s International, Inc., 991 F.2d 583, 587-88 (9th Cir.1993), cert. denied, — U.S. •——, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994). As the court in Miller noted, the purpose of the “agent” provision in § 2000e(b) was only to incorporate respondeat superior liability into Title VII. Consequently, there is no reason to stretch the liability of individual employees beyond the respondeat superior principle. Miller, 991 F.2d at 587. See Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (supervisor who is sued under Title VII “operates as the alter ego of the employer, and the employer is liable for the unlawful employment practices.”). The Miller court also determined that the statutory scheme of Title VII indicates Congress did not intend to impose individual liability. Liability under Title VII is expressly limited to employers with fifteen or more employees because Congress “did not want to burden small entities with the costs associated with litigating discrimination claims.” Id. at 587. Given this level of protection for small entities, it is “inconceivable that Congress intended to allow civil liability to run against individual employees.” Id. Further, the 1991 Act also place caps on the availability of compensatory and punitive damages based on the size of an employer’s workforce. 42 U.S.C. § 1981a(b)(3)(A-D). Once again, Congress chose to exempt employers with less than fifteen employees. It is illogical to assume that individual liability was contemplated just because these remedies were altered. As the Ninth Circuit noted in Miller, “if Congress had envisioned individual liability under Title VII for compensatory and punitive damages, it would have included individuals in this litany of limitations and would have discontinued the exemption for small employers.” Miller, 991 F.2d at 588 n. 2. Finally, violations of Title VII by supervisors and employees will not go unchecked in the absence of individual liability. As the Miller court observed: Although one court has determined that this holding would encourage supervisory personnel to believe that they may violate Title VII with impunity, the court’s reasoning is unsound. No employer will allow supervisory" }, { "docid": "10050320", "title": "", "text": "F.2d at 587). The Ninth Circuit in Miller determined that supervisors could not be held individually liable under Title VII. They reasoned that the statutory scheme itself indicated that Congress did not intend to impose individual liability. The statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), ... in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. Miller, 991 F.2d at 587. Prior to passage of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (codified in pertinent part at 42 U.S.C. 1981a), some courts that reached the same conclusion as Miller “strengthened” their arguments by noting that Title VII contained remedies that an employer, as opposed to an individual, could generally provide. The most obvious examples are back pay and reinstatement. See Pommier v. James L. Edelstein Enters., 816 F.Supp. 476, 481 (N.D.Ill.1993) (citing Weiss v. Coca-Cola Bottling Co., 772 F.Supp. 407, 410-11 (N.D.Ill.1991)). The Civil Rights Act of 1991 expanded the types of remedies available to an employee under Title VII by adding compensatory and punitive damages to the list. 42 U.S.C. § 1981a(a)(l). However, this addition does not mean that Congress intended to impose personal liability on agents of em ployers. See Miller, 991 F.2d at 587-88 n. 2; Vodde, 852 F.Supp. at 680. While some courts have disagreed with this proposition, this court finds the reasoning behind it, as expressed by the Miller court, persuasive. The court in Miller, addressing the consequences of the expanded remedies under Title VII, pointed out that Congress specifically capped the amount of compensatory and punitive damages available to an employee according to the size of the employer. See 42 U.S.C. 1981a(b)(3). Furthermore, they did not change the definition of “employer” to include those companies with fewer than fifteen employees." }, { "docid": "866246", "title": "", "text": "for intentional discrimination in violation of Title VII. 42 U.S.C. § 1981a(a)(l). Accordingly, some courts have determined that there is no longer a reason to exempt individuals from Title VII liability since these damages are of a type that an individual can be expected to pay. Vakharia v. Swedish Covenant Hosp., 824 F.Supp. 769, 784-86 (N.D.Ill.1993); Wilson v. Gillis Advertising Co., 61 Empl.Prac.Dec.P. 42, 245, 1993 WL 503117 (N.D.Ala. Jan. 8, 1993); Bridges v. Eastman Kodak Co., 800 F.Supp. 1172, 1180 (S.D.N.Y.1992). Plaintiffs assert that all of their claims accrued after passage of the Civil Rights Act of 1991 and therefore previous decisions exempting individual employees from liability are inapposite to this case. However, despite the 1991 changes in the available remedies under Title VII, Congress did not alter the fundamental definition of “employer.” The mere fact that new remedies were added does not in itself expand the pool of those subject to liability under the term “employer.” The better reasoned approach to analyzing individual liability in light of the 1991 Act is that recently outlined by the Ninth Circuit in Miller v. Maxwell’s International, Inc., 991 F.2d 583, 587-88 (9th Cir.1993), cert. denied, — U.S. •——, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994). As the court in Miller noted, the purpose of the “agent” provision in § 2000e(b) was only to incorporate respondeat superior liability into Title VII. Consequently, there is no reason to stretch the liability of individual employees beyond the respondeat superior principle. Miller, 991 F.2d at 587. See Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (supervisor who is sued under Title VII “operates as the alter ego of the employer, and the employer is liable for the unlawful employment practices.”). The Miller court also determined that the statutory scheme of Title VII indicates Congress did not intend to impose individual liability. Liability under Title VII is expressly limited to employers with fifteen or more employees because Congress “did not want to burden small entities with the costs associated with litigating discrimination claims.” Id. at 587. Given this level of protection for small" }, { "docid": "22871097", "title": "", "text": "paid by the employer. Id. at 968. In Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 584 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the court extended this rule to private employers. Defendants were employees of a restaurant and its corporate owner. The plaintiff alleged that she was discriminated against because of her sex and age and sought to hold the defendants personally liable for their actions. The court rejected her claim, noting, “Because Congress assessed civil liability only against an employer under Title VII, ... ‘individual defendants cannot be held liable for back pay.’” Id. at 587 (quoting Padway, 665 F.2d at 968). The court also rejected the notion that “supervisory personnel and other agents of the employer are themselves employers for purposes of liability.” Id. The definition of the term “employer” in § 2000e(b) does not include individuals who do not otherwise qualify as employers under the statute. In Miller, the court observed that the purpose of the “agent” provision in § 2000e(b) was to incorporate respondeat superior liability into title VII. The court found no reason to stretch the liability of individual employees beyond the respondeat superior principle intended by Congress. The court also noted that the statutory scheme of title VII indicated that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, because Congress “did not want to burden small entities with the costs associated with litigating discrimination claims” and wanted “to protect small entities with limited resources from liability.” Id. Thus, the court found it “inconceivable that Congress intended to allow civil liability to run against individual employees,” the smallest of legal entities. Id. Finally, the Miller court suggested that had Congress envisioned liability for non-employer natural persons, it would have included it in its recent amendments to title VII under the Civil Rights Act of 1991. Id. at 587 n. 2. We find no reason to limit the rationale of Clanton and Harvey v. Blake to the realm of public employee disputes. Thus, we conclude" }, { "docid": "8146937", "title": "", "text": "(Title VII). In Fantini, we recognized that Title VU’s exemption for small employers signified an intention not “ ‘to burden small entities with the costs associated with litigating discrimination claims.’ ” 557 F.3d at 29 (quoting Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993)). We quoted the Ninth Circuit’s observation that “ ‘[i]f Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.’” Id. (quoting Miller, 991 F.2d at 587). Hence, we accepted that the statutory reference to “any agent” in the definition of “employer” does not connote individual liability, but “ ‘simply ... establishes] a limit on an employer’s liability for its employees’ actions.’ ” Fantini, 557 F.3d at 30 (quoting Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir.1998)); see also Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996) (noting that “the ‘agent’ language was included to ensure respondeat superior liability of the employer for the acts of its agents”). We also relied on precedent noting that changes to Title VII’s remedial scheme enacted in 1991 — applicable to the ADA as well — bolstered the conclusion that individuals are not liable under the statutes. Fantini, 557 F.3d at 31; see 42 U.S.C. § 1981a. Previously, the ordinary remedies available under Title VII were limited to back pay and equitable relief, which “‘“typically are only obtainable from an employing entity, not from a mere individual.”’” Fantini, 557 F.3d at 31 (quoting Lissau, 159 F.3d at 181 (quoting AIC, 55 F.3d at 1281)). The 1991 amendments added compensatory and punitive damages calibrated to the size of the employer. The “sliding scale of liability,” which ranges from a maximum of $50,000 for companies that employ up to one hundred workers and a maximum of $300,000 for companies that employ more than 500 employees, 42 U.S.C. § 1981a(b)(3), “does not stipulate an amount in cases where a plaintiff seeks to hold an individual supervisor liable.” Lissau, 159 F.3d at 181. Thus, we concluded that neither the original remedial" } ]

[ { "docid": "22695759", "title": "", "text": "inapplicable to bank mergers. III. The Lawfulness of the Proposed Merger Under Section 7. The statutory test is whether the effect of the merger “may be substantially to lessen competition” “in any line of commerce in any section of the country.” We analyzed the test in detail in Brown Shoe Co. v. United States, 370 U. S. 294, and that analysis need not be repeated or extended here, for the instant case presents only a straightforward problem of application to particular facts. We have no difficulty in determining-the “line of commerce” (relevant product or services market) and “section of the country” (relevant geographical market) in which to appraise the probable competitive effects of appellees’ proposed merger. We agree with the District Court that the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term “commercial banking,” see note 5, supra, composes a distinct line of commerce. Some commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions ; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies’ rates are invariably much higher than the banks’, in part, it seems, because the companies’ working capital consists in substantial part of bank loans. Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a marked degree, from competition this seems to be the cáse with savings deposits. In sum, it is clear that commercial banking is a market “sufficiently inclusive to be meaningful in terms of trade realities.” Crown Zellerbach Corp. v. Federal Trade Comm’n, 296 F. 2d 800, 811 (C. A. 9th Cir. 1961). We part company with the District Court on the determination of the appropriate “section of the’" } ]

[ { "docid": "13819200", "title": "", "text": "cheaper forms of protection, others will not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection.” 384 U.S. at 574, 86 S.Ct. at 1706. Similarly, in International Boxing Club, Inc. v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270, the Court held that the relevant market was the promotion of championship boxing contests in contrast to all professional boxing events, despite the claimed physical identity of the products involved. One of the reasons supporting this conclusion was testimony of representatives of the various media that there was a special demand for the rights to broadcast, telecast and film championship contests as compared to non-championship contests. 358 U.S. at 252, 79 S.Ct. at 245. The most recent Supreme Court consideration of a relevant market occurred in United States v. The Connecticut National Bank, 418 U.S. 656, 94 S.Ct. 2788, 41 L.Ed.2d 978. There the district court had concluded that both savings and commercial banks were in the same product market for Clayton Act purposes. While acknowledging that savings banks and commercial banks in Connecticut are fierce competitors as to certain services, a unanimous Court concluded that the business of commercial banking was sufficiently distinct from other credit institutions to warrant separate treatment. Commercial banking was held to be a distinct line of commerce even though there was a large measure of similarity between the services provided by savings banks and commercial banks in Connecticut. Our own decisions also uphold sub-markets in appropriate cases. Thus in L. G. Balfour Co. v. Federal Trade Commission, 442 F.2d 1, 11 (7th Cir. 1971), we rejected an argument that the suppliers of all emblematic j'ewelry, rather than fraternity products, should be included in the product market, stating that any market definition “which ignores the buyers [here the college newspapers] and focuses on what the sellers do, or theoretically can do, is not meaningful.” Similarly in Avnet, Inc. v. Federal Trade Commission, 511 F.2d 70, at 77—79 (7th Cir. 1975), involving manufacturers of parts" }, { "docid": "23212535", "title": "", "text": "production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized venders.” Brown Shoe, supra, 370 U.S. at 325, 82 S.Ct. at 1524. See United States v. Grinnell Corp., 384 U.S. 563 at 572, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Cellophane case, supra, 351 U.S. at 393-395, 76 S.Ct. 994. Of course, mere physical differences between one product and others will not alone isolate that product in a separate submarket. There is “no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities.” Grinnell, supra, 384 U.S. at 572, 86 S.Ct. at 1704. But a real and outstanding product superiority will define a separate submarket for antitrust purposes. An example of such superiority was found in Grinnell, supra, where the Supreme Court held that insurance company accredited central station fire and burglar protection services which receive automatic alarm signals and take protective action constitute a separate sub-market far superior to nonaccredited systems utilizing watchmen, audible alarms, or similar devices. 384 U.S. at 573-575, 86 S.Ct. 1698. And professional world championship boxing contests attract such extraordinary attention and revenues as to achieve a quality sufficiently different from other boxing matches to constitute a separate market. International Boxing Club of New York v. United States, 358 U.S. 242, 249-251, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959). Cf. duPont, supra, 353 U.S. at 594, 77 S.Ct. 872; Bethlehem, supra, 168 F.Supp. at 589. Admittedly, these are distinctions in degree, not in kind. No objective criterion tells us that Rolls Royce competes with Mercedes but not with Volkswagen. Cf. United States v. Grinnell Corp., 236 F.Supp. 244, 253 (D.R.I.1964), decree modified, 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Cooper, 72 Mich.L.Rev. 375, 381 n. 25 (1974). But that recognition shows only the difficulty of our task, not its impropriety. Appellant points out that pipeless systems, by eliminating buried perimeter piping, save excavation and maintenance costs, permit greater design flexibility, and outlast conventional systems two to three times. Yet despite these features, over ninety-seven per cent of the pub- lie" }, { "docid": "3888670", "title": "", "text": "Justice Brennan wrote (374 U.S.. at 356-357, 83 S.Ct. at 1737-1738) : * * * [T]he cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term “commercial banking,” see note 5, supra, composes a distinct line of corn merce. Some commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies’ rates are invariably much higher than the banks’, in part, it seems, because the companies’ working capital consists in substantial part of bank loans. Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a marked degree, from competition; this seems to be the case with savings deposits. In sum, it is clear that commercial banking is a market “sufficiently inclusive to be meaningful in terms of trade realities.” Crown Zellerbach Corp. v. Federal Trade Comm., 296 F.2d 800, 811 (CA9th Cir. 1961). [Footnotes other than 5 in Philadelphia, that is, 7 herein, omitted; footnote 6 added.] The meaning of “line of commerce” was considered after Philadelphia and before Nashville in United States v. Crocker-Anglo-National Bank, supra. Judge Zirpoli, writing for a three-judge court, 277 F.Supp. at 153-162, deemed significant the omission of those three words from the Bank Merger Act of 1966 and also held that it was not proper to ignore what he termed (at 154) “the totality of financial activities carried on by commercial hanks and their competition in a statewide market of the magnitude of California or in the national market,” thus seemingly distinguishing such a market from a local market. Crocker, as indicated, involved a geographical merger, albeit on a statewide level. All other bank" }, { "docid": "22717762", "title": "", "text": "Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under § 144. Me. Justice Hablan, dissenting. I cannot agree with the Court that the relevant market has been adequately proved. I do not dispute that a national market may be found even though immediate competition takes place only within individual communities, some of which are themselves natural monopolies. For a national monopoly of such local enterprises may still have serious long-term impact on competition and be vulnerable on its own plane to the antitrust laws. In the product market also the Court seems to me to make out a good enough case for lumping together the different kinds of central station protective service (CSPS). But I cannot agree that the facts so far developed warrant restricting the product market to accredited CSPS. Because the ultimate issue is the effective power to control price and competition, this Court has always recognized that the market must include products or services “reasonably interchangeable” with those of the alleged monopolist. United States v. du Pont & Co., 351 U. S. 377, 395. In this instance, there is no doubt that the accredited CSPS business does compete in some measure with many other forms of hazard protection: watchmen, local alarms, proprietary systems, telephone-connected services, unaccredited CSPS, direct-connected (to police and fire stations) systems, and so forth. The critical question, then, is the extent of competition from these rivals. The Government and the majority have stressed that differences in cost, reliability and insurance discounts may disqualify a competing form of protection for a particular customer. For example, it is said that proprietary systems are too expensive for any but large companies and local alarms may go unanswered in some neighborhoods. But if in general a CSPS customer has a feasible alternative to CSPS, it does not much matter that other ones are foreclosed to him, nor that other CSPS customers have different second choices. From this record, it may well be that other forms of protection are each competitive enough with segments of the CSPS market so" }, { "docid": "22717743", "title": "", "text": "to overstate the degree of competition, but we recognize that (as the District Court found) they “do not have unfettered power to control the price of their services . . . due to the fringe competition of other alarm or watchmen services.” 236 F. Supp., at 254. What defendants overlook is that the high degree of differentiation between central station protection ánd the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of cheaper forms of protection, others will, not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection. The accredited, as distinguished from nonaccredited service, is a relevant part of commerce. Virtually the only central station companies in the status of the non-accredited are those that have not yet been able to meet the standards of the rating bureau. The accredited ones are indeed those that have achieved, in the eyes of underwriters, superiorities that other central stations do not have. The accredited central station is located in a building of approved design, provided with an emergency lighting system and two alternate main power sources, manned constantly by at least a required minimum of operators, provided with a direct line to fire headquarters and, where possible, a direct line to a police station; and equipped with all the devices, circuits and equipment meeting the requirements of the underwriters. These standards are important as insurance carriers often require accredited central station service as a condition to writing insurance. There is indeed evidence that customers consider the unaccredited service as inferior. We also agree with the District Court that the geographic market for the accredited central station service is national. The activities of an individual station are in a sense local as it serves, ordinarily, only that area which is within a radius of 25 miles. But the record amply supports the conclusion that the business of providing such a service is operated on a" }, { "docid": "22717742", "title": "", "text": "off an audible alarm at the site of a fire or burglary are cheaper but often less reliable. They may be inoperable without anyone’s knowing it. Moreover, there is a risk that the íocal ringing of an alarm will not attract the needed attention and help. Proprietary systems that a customer purchases and operates are available; but they can be used only by a very large business or by government and are not realistic alternatives for most concerns. There are also protective services connected directly to a municipal police or fire department. But most cities with an accredited central station do not permit direct, connected service for private businesses. These alternate services and devices differ, we are told, in utility, efficiency, reliability, responsiveness, and continuity, and the record sustains that position. And, as noted, insurance companies generally allow a greater reduction in premiums for accredited central station service than for other types of protection. Defendants earnestly urge that despite these differences, they face competition from these other modes of protection. They seem to us seriously to overstate the degree of competition, but we recognize that (as the District Court found) they “do not have unfettered power to control the price of their services . . . due to the fringe competition of other alarm or watchmen services.” 236 F. Supp., at 254. What defendants overlook is that the high degree of differentiation between central station protection ánd the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of cheaper forms of protection, others will, not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection. The accredited, as distinguished from nonaccredited service, is a relevant part of commerce. Virtually the only central station companies in the status of the non-accredited are those that have not yet been able to meet the standards of the rating bureau. The accredited ones are indeed those that have achieved," }, { "docid": "23212534", "title": "", "text": "the design of the concrete or pneumatically applied concrete gutters.” Thus, even when we adopt the supplier’s perspective advanced by appellant, we find insufficient evidence to displace the district court’s finding that there is “vigorous competition among suppliers and manufacturers ... to get speci fied,” and that it is “[b]efore the specifications are issued [that] competition is keenest.” 376 F.Supp. at 130. Therefore, whether we look to consumers or suppliers, we find vigorous competition and interchangeability between conventional and pipeless systems. Appellant argues that if competition between pipeless and conventional recirculation systems suggests, as it does, a market definition encompassing both types of systems, the peculiar characteristics of commerce in pipeless systems render it a recognizable submarket within the meaning of Brown Shoe, supra: “[W]ithin [a] broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s, peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized venders.” Brown Shoe, supra, 370 U.S. at 325, 82 S.Ct. at 1524. See United States v. Grinnell Corp., 384 U.S. 563 at 572, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Cellophane case, supra, 351 U.S. at 393-395, 76 S.Ct. 994. Of course, mere physical differences between one product and others will not alone isolate that product in a separate submarket. There is “no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities.” Grinnell, supra, 384 U.S. at 572, 86 S.Ct. at 1704. But a real and outstanding product superiority will define a separate submarket for antitrust purposes. An example of such superiority was found in Grinnell, supra, where the Supreme Court held that insurance company accredited central station fire and burglar protection services which receive automatic alarm signals and take protective action constitute a separate sub-market far superior to nonaccredited systems utilizing watchmen, audible alarms, or similar devices. 384 U.S. at 573-575," }, { "docid": "8120039", "title": "", "text": "competitors (cross-elasticity of supply). We believe that Telex, together with the cases cited in note 79, supra, raise very serious doubts as to whether the relevant market here could be confined as a matter of law to servicing Beckman instruments or Beckman UCs. As to the broader market asserted by plaintiff, there was no evidence as to Beckman’s comparative strength in the scientific instrument market as a whole. As to the submarket, while Beckman obviously enjoys a dominant position in UC sales, the evidence introduced by Beckman as to those instruments or systems which provide the customer with substitutes for UCs remained uncontradicted. There was no evidence regarding Beckman’s strength if reasonably interchangeable substitutes for UCs were considered as part of the submarket. Moreover, the possibility of defining so narrow a submarket must be weighed in light of the standards laid down by the Supreme Court in Brown Shoe Co. v. United States, 1962, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510: The boundaries of . . .a submark-et may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Of course, because this case involve services, Brown Shoe must be read in conjunction with United States v. Grinnell Corp., 1966, 384 U.S. 563, 572-73, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778: [W]e deal with services, not with products; and ... we conclude that the accredited central station is a type of service that makes up a relevant market and that domination or control of it makes out a monopoly of a “part” of trade or commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentiz-ing the types of services into lesser units. Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the" }, { "docid": "23626152", "title": "", "text": "impediment to competition and thus an aid in the exercise of market power. See, e.g., United States v. Pabst Brewing Co., 384 U.S. 546, 559-61, 86 S.Ct. 1665, 1672, 16 L.Ed.2d 765 (1966) (Harlan, J., concurring), on remand, 296 F.Supp. 994 (E.D.Wis.1969). A single branded product may, in rare cases, constitute its own relevant market. Los Angeles Mem. Coliseum Comm’n v. National Football League, 726 F.2d 1381, 1393 (9th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). The understanding that brand loyalty may facilitate monopolization is consistent with the general proposition that the ability to discriminate against a distinct group of customers by charging higher prices for otherwise similar products demonstrates the existence of market power with respect to that group. See United States v. Grinnell Corp., 384 U.S. 563, 574, 86 S.Ct. 1698, 1706, 16 L.Ed.2d 778 (1966). The existence of such market power may, as a practical matter, remove the higher priced product from the broader market composed of its functional substitutes. See C.E. Services, Inc. v. Control Data Corp., 759 F.2d 1241, 1246 (5th Cir.), cert. denied, 474 U.S. 1037, 106 S.Ct. 604, 88 L.Ed.2d 583 (1985) (holding that “a ubiquitous price differential of some 20-25%” between branded and unbranded services, combined with other Brown Shoe factors, could justify finding a separate market for the unbranded services and thus precluded summary judgment on the issue of market definition). We do not suggest that the existence or hypothetical possibility of monopoly power over one product automatically excludes it from a broader market. “[SJubmarkets are not a basis for the disregard of a broader line of commerce that has economic significance.” United States v. Phillipsburg Nat’l Bank & Trust Co., 399 U.S. 350, 360, 90 S.Ct. 2035, 2041, 26 L.Ed.2d 658 (1970). We do hold, however, that regardless of which party in the case bears the ultimate burden of persuasion, the broader economic significance of a submarket must be supported by demonstrable empirical evidence. Although perhaps difficult to come by, evidence that the dominant firm within a submarket costs of production were insensitive to" }, { "docid": "22717740", "title": "", "text": "commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentizing the types of services into lesser units. Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service. The different forms of accredited central station service are provided from a single office and customers utilize different services in combination. We held in United States v. Philadelphia Nat. Bank, 374 U. S. 321, 356, that “the cluster” of services denoted by the term “commercial banking” is “a distinct line of commerce.” There is, in our view, a comparable cluster of services here. That bank case arose under § 7 of the Clayton Act where the question was whether the effect of a merger “in any line of commerce” may be “substantially to lessen competition.” We see no reason to differentiate between “line” of commerce in the context of the Clayton Act and “part” of commerce for purposes of the Sherman Act. See United States v. First Nat. Bank & Trust Co., 376 U. S. 665, 667-668. In the § 7 national bank case just mentioned, services, not products in the mercantile sense, were involved. In our view the lumping together of various kinds of services makes for the appropriate market here as it did in the § 7 case. There are, to be sure, substitutes for the accredited central station service. But none of them appears to operate on the same level as the central station service so as to meet the interchangeability test of the du Pont case. Nonautomatic and automatic local alarm systems appear on this record to have marked differences, not the low degree of differentiation required of substitute services as well as substitute articles. Watchman service is far more costly and less reliable. Systems that set" }, { "docid": "22717739", "title": "", "text": "the protection of property, through a central station that receives signals. It is that service, accredited, that is unique and that competes with all the other forms of property protection. We see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities. To repeat, there is here a single basic service — the protection of property through use of a central service station — that must be compared with all other forms of property protection. In § 2' cases under the Sherman Act, as in § 7 cases under the Clayton Act (Brown Shoe Co. v. United States, 370 U. S. 294, 325) there may be submarkets that are separate economic entities. We do not pursue that question here. First, we deal with services, not with products; and second, we conclude that the accredited central station is a type of service that makes up a relevant market and that domination or control of it makes out a monopoly of a “part” of trade or commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentizing the types of services into lesser units. Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service. The different forms of accredited central station service are provided from a single office and customers utilize different services in combination. We held in United States v. Philadelphia Nat. Bank, 374 U. S. 321, 356, that “the cluster” of services denoted by the term “commercial banking” is “a distinct line of commerce.” There is, in our view, a comparable cluster of services here. That bank case arose under § 7 of the Clayton Act where the question was whether the effect of a merger “in any" }, { "docid": "13819198", "title": "", "text": "to present national advertising to college students, with all deference, the district court misapplied the appropriate legal standards, thus compelling reversal. See United States v. Connecticut National Bank, 418 U.S. 656, 666, 94 S.Ct. 2788, 41 L.Ed.2d 1016; Mullis v. Arco Petroleum Corp., 502 F.2d 290, 296-297 (7th Cir. 1974); Bendix Corp. v. Balax, Inc., 471 F.2d 149, 161 (7th Cir. 1972), certiorari denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51; American Aloe Corp. v. Aloe Creme Laboratories, Inc., 420 F.2d 1248 (7th Cir. 1970), certiorari denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91. In this area, the classic principles were adumbrated in United States v. E. I. Du Pont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264, the so-called Cellophane case, and Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510. In the former, the Supreme Court laid down the “reasonable interchangeability” test for ascertaining a relevant market for commodities. In Brown Shoe, this test was refined by recognizing that submarkets may exist whose boundaries “may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” 370 U.S. at 325, 82 S.Ct. at 1524. In Du Pont and Brown Shoe, relatively expansive markets were found to be appropriate. However, subsequent Supreme Court cases have recognized the propriety of narrower markets depending on the facts of the individual case. Thus in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778, defendants unsuccessfully wanted protective services other than those of the central station variety to be included in the market definition. In rejecting that position, the Court observed: “What defendants overlook is that the high degree of differentiation between central station protection and the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of" }, { "docid": "13819199", "title": "", "text": "that submarkets may exist whose boundaries “may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” 370 U.S. at 325, 82 S.Ct. at 1524. In Du Pont and Brown Shoe, relatively expansive markets were found to be appropriate. However, subsequent Supreme Court cases have recognized the propriety of narrower markets depending on the facts of the individual case. Thus in United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778, defendants unsuccessfully wanted protective services other than those of the central station variety to be included in the market definition. In rejecting that position, the Court observed: “What defendants overlook is that the high degree of differentiation between central station protection and the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of cheaper forms of protection, others will not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection.” 384 U.S. at 574, 86 S.Ct. at 1706. Similarly, in International Boxing Club, Inc. v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270, the Court held that the relevant market was the promotion of championship boxing contests in contrast to all professional boxing events, despite the claimed physical identity of the products involved. One of the reasons supporting this conclusion was testimony of representatives of the various media that there was a special demand for the rights to broadcast, telecast and film championship contests as compared to non-championship contests. 358 U.S. at 252, 79 S.Ct. at 245. The most recent Supreme Court consideration of a relevant market occurred in United States v. The Connecticut National Bank, 418 U.S. 656, 94 S.Ct. 2788, 41 L.Ed.2d 978. There the district court had concluded that both savings and commercial banks" }, { "docid": "12452036", "title": "", "text": "coal (for example) arises high enough, coal users will switch to oil (cross-elasticity), the cost and inconvenience of doing so would normally place enough of an external (nonprice) limitation on the demand behavior of coal users that coal and oil will nevertheless continue to exist in separate product markets. On the other hand, if the cost and inconveience of switching from one type of coal to another type of coal has a relatively insignificant effect on the demand behavior of coal users, the two different types of coal will, in all likelihood, continue to exist in the same product market, . We refer to the statement in United States v. Philadelphia National Bank, 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963), wherein the Court said: We agree with the District Court that the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term “commercial banking,” * * * composes a distinct line of commerce. Some commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions ; the cheeking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. * * * Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference insulating them, to a marked degree, from competition; this seems to be the case with savings deposits. In sum, it is clear that commercial banking is a market “sufficiently inclusive to be meaningful in terms of trade realities.” * * * . Major Denver banks have nearly 90% of their sales of bank services to other banks in a service area which includes Colorado, Kansas, Nebraska, New Mexico and Wyoming. . According to plaintiff’s statistic, FNB Greeley’s correspondent balances represent 1.2% of all such deposits in the si® Denver correspondents from Colorado banks. This statistic assumes" }, { "docid": "8120040", "title": "", "text": "by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Of course, because this case involve services, Brown Shoe must be read in conjunction with United States v. Grinnell Corp., 1966, 384 U.S. 563, 572-73, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778: [W]e deal with services, not with products; and ... we conclude that the accredited central station is a type of service that makes up a relevant market and that domination or control of it makes out a monopoly of a “part” of trade or commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentiz-ing the types of services into lesser units. Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service. The different forms of accredited central station service are provided from a single office and customers utilize different services in combination. In our view the lumping together of various kinds of services makes for the appropriate market here . (Emphasis in original; footnotes deleted.) Translating these cases to the facts here, there is nothing in the record to indicate that the industry or the public recognizes servicing of Beckman UCs as a separate economic entity. Del Valle, who was trained to service UCs in two hours before he began performing jobs on his own, went so far as to tell the Trial Judge (who admitted having little mechanical ability) that the Judge could be trained to service an ultracentrifuge. Tr. 1347-48. Indeed, Spectrofuge’s position throughout has been that UC servicing was a fairly simple matter. Therefore, it cannot be said unique engineering talents (production facilities) are involved." }, { "docid": "11700471", "title": "", "text": "are in competition with many other soft drinks.”); Barq’s Inc. v. Barq’s Beverages, Inc., 677 F.Supp. 449, 455 (E.D.La. 1987) (“Based upon the theory of interchangeability, which allows for closely related product substitutes to be considered in the relevant market, the appropriate unit here is all soft drinks. Barq’s root beer is merely one soft drink in a market of competing soft drinks.”). Accordingly, Pepsi branded beverage products cannot alone comprise a relevant product market. Plaintiffs attempt to avoid this conclusion by offering evidence that consumers are “brand loyal” to Pepsi branded products. Mr. Davis, one of the grocery store owners in this case, testified that in his experience, people are brand loyal to Pepsi because instead of substituting Coke if they do not find Pepsi on the grocery store shelves they look elsewhere for Pepsi. Brand loyalty of consumers to particular soft drinks is an insufficient basis for concluding that Pepsi constitutes a relevant product market. Plaintiffs have offered no other evidence to show that Pepsi products are not reasonably interchangeable with Coke products or other branded soft drinks. Nor have Plaintiffs offered any evidence pertaining to the specific factors listed by the Supreme Court in Brown Shoe, such as evidence that Pepsi prices are insensitive to price changes in other branded soft drinks. See 370 U.S. at 325, 82 S.Ct. 1502. In short, Plaintiffs have offered no evidence — other than their own testimony pertaining to brand loyalty — to prove that Pepsi branded products constitute a market distinct from other soft drink products. 2. Cluster markets Courts also recognize the existence of “cluster markets.” A “cluster market” exists where a seller provides a full line of products or services that create a separate product market consisting of that “cluster” of products or services. See United States v. Phillipsburg Nat’l Bank & Trust Co., 399 U.S. 350, 360-61, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970) (holding that products and services offered by full-service banks constituted cluster market); United States v. Grinnell Corp., 384 U.S. 563, 572-73, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (holding that central station protective" }, { "docid": "11700472", "title": "", "text": "or other branded soft drinks. Nor have Plaintiffs offered any evidence pertaining to the specific factors listed by the Supreme Court in Brown Shoe, such as evidence that Pepsi prices are insensitive to price changes in other branded soft drinks. See 370 U.S. at 325, 82 S.Ct. 1502. In short, Plaintiffs have offered no evidence — other than their own testimony pertaining to brand loyalty — to prove that Pepsi branded products constitute a market distinct from other soft drink products. 2. Cluster markets Courts also recognize the existence of “cluster markets.” A “cluster market” exists where a seller provides a full line of products or services that create a separate product market consisting of that “cluster” of products or services. See United States v. Phillipsburg Nat’l Bank & Trust Co., 399 U.S. 350, 360-61, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970) (holding that products and services offered by full-service banks constituted cluster market); United States v. Grinnell Corp., 384 U.S. 563, 572-73, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (holding that central station protective services including automated burglar alarms, automated fire alarms, sprinkler services, and watch signal services constituted cluster market); United States v. Phila. Nat’l Bank, 374 U.S. 321, 356-57, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (holding that products and services offered by commercial banks constituted cluster market). A cluster market exists only when the “cluster” is itself an object of consumer demand. See Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d 1216, 1221 (10th Cir.1986) (rejecting cluster market approach where cluster was not itself the object of consumer demand). In other words, the cluster approach is only appropriate where “ ‘the product package is significantly different from, and appeals to buyers on a different basis from, the individual products considered separately.’ ” Id. (quoting JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc., 698 F.2d 1011, 1016-17 (9th Cir.1983)). Plaintiffs argue that even if Pepsi products themselves cannot constitute a relevant product market, Bottling Group distributes a full line of beverage products that together constitute a cluster market over which Bottling Group has monopoly power. Specifically, Plaintiffs" }, { "docid": "22717741", "title": "", "text": "line of commerce” may be “substantially to lessen competition.” We see no reason to differentiate between “line” of commerce in the context of the Clayton Act and “part” of commerce for purposes of the Sherman Act. See United States v. First Nat. Bank & Trust Co., 376 U. S. 665, 667-668. In the § 7 national bank case just mentioned, services, not products in the mercantile sense, were involved. In our view the lumping together of various kinds of services makes for the appropriate market here as it did in the § 7 case. There are, to be sure, substitutes for the accredited central station service. But none of them appears to operate on the same level as the central station service so as to meet the interchangeability test of the du Pont case. Nonautomatic and automatic local alarm systems appear on this record to have marked differences, not the low degree of differentiation required of substitute services as well as substitute articles. Watchman service is far more costly and less reliable. Systems that set off an audible alarm at the site of a fire or burglary are cheaper but often less reliable. They may be inoperable without anyone’s knowing it. Moreover, there is a risk that the íocal ringing of an alarm will not attract the needed attention and help. Proprietary systems that a customer purchases and operates are available; but they can be used only by a very large business or by government and are not realistic alternatives for most concerns. There are also protective services connected directly to a municipal police or fire department. But most cities with an accredited central station do not permit direct, connected service for private businesses. These alternate services and devices differ, we are told, in utility, efficiency, reliability, responsiveness, and continuity, and the record sustains that position. And, as noted, insurance companies generally allow a greater reduction in premiums for accredited central station service than for other types of protection. Defendants earnestly urge that despite these differences, they face competition from these other modes of protection. They seem to us seriously" }, { "docid": "4128180", "title": "", "text": "the appropriate line of commerce within which to measure the probable anti-competitive effects, if any, of the proposed merger. This Court is mindful of the fact that in United States v. Philadelphia National Bank, 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963), the Supreme Court held under the particular circumstances of that case at the time it was decided, that “the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term ‘commercial banking’ * * * composes a distinct line of commerce.” The Court in Philadelphia also stated as did Plaintiff’s witness, Dr. Golden, that among all financial institutions the demand deposit and check clearing functions of commercial banks are unique and entirely free of effective competition from products or services of other financial institutions. Id. 356, 83 S.Ct. 1715 (Golden, Tr. 178, Lines 1-20). The Supreme Court in Philadelphia placed great significance on the fact that * * * there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a marked degree, from competition; this seems to be the case with savings deposits.34 In sum, it is clear that commercial banking is a market “sufficiently inclusive to be meaningful in terms of trade realities (citing Crown Zellerbach Corp. v. Federal Trade Comm’n, 296 F.2d 800, 811 C.A. 9th Cir. 1961). 374 U.S. at 356-357, 83 S.Ct., at 1738 In Footnote 34 the Court quoted from the testimony of a witness for the Defendant who stated that, although savings banks offered one-half percent or more higher interest than commercial banks on savings accounts, nevertheless the rate of increase in savings accounts in commercial banks had kept pace with and in many banks exceeded the rate of increase of the mutual banks paying three and one-half percent * * * because “there isn’t anybody in Philadelphia who would take the trouble to walk across Broad Street to get % of 1 percent more interest." }, { "docid": "3888669", "title": "", "text": "a controversy in this case as to what constitutes “line of commerce.” Plaintiff, maintaining that the absence of the phrase “line of commerce” in the Bank Merger Act of 1966 does not constitute any intention on the part of Congress “to alter the traditional methods of defining relevant markets in which to appraise the anticompetitive effect of a merger,” points to Mr. Justice White’s stated agreement with the District Court that “commercial banking * * * [in the county involved] was the relevant market for appraising this merger.” United States v. Third National Bank in Nashville supra 390 U.S. at 182 n. 15, 88 S.Ct. at 889. Prior to Nashville, in Houston, supra 386 U.S. at 369 n. 1, 87 S. Ct. 1088, the Supreme Court, after noting the absence of the words, “line of commerce,” in the 1966 statute, stated that it did not “reach or intimate” any conclusion as to whether the 1966 Act changed the concept in banking of the relevant market. Earlier, prior to the 1966 statute, in Philadelphia, supra, Mr. Justice Brennan wrote (374 U.S.. at 356-357, 83 S.Ct. at 1737-1738) : * * * [T]he cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term “commercial banking,” see note 5, supra, composes a distinct line of corn merce. Some commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies’ rates are invariably much higher than the banks’, in part, it seems, because the companies’ working capital consists in substantial part of bank loans. Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a" } ]

[ { "docid": "17719496", "title": "", "text": "well as its substantive law of liability. We are persuaded that, if confronted with these facts, the court would reason that the law governing recovery for a tort occurring in Pennsylvania should be the same for a victim who is able to prosecute his claim personally as for one who dies prior to filing suit. Because a survival statute, as distinguished from a wrongful death statute, merely keeps the decedent’s cause of action alive, the Pennsylvania court probably would place a greater importance on New York’s interests in the decedent, not in his survivors. New York’s interest in applying its law of damages to its resident who chose to vacation in Pennsylvania would weigh lightly on the qualitative scale compared with Pennsylvania’s policy of compensating tort victims when that state is the place of the tortious impact. Furthermore, having adopted the Restatement approach in Griffith, Pennsylvania would undoubtedly place a high qualitative significance on the factors set forth in Restatement (Second) of Conflict of Laws § 6(2)(e-g) (1971): a consideration of the basic policies underlying the particular field of law; the desire for certainty, predictability and uniformity of result; and ease in the determination and application of the law to be applied. We think the analysis presented by Professor Cavers is consistent with this approach. In his treatise, he suggests a hypothetical which is identical to the case at bar, and asks whether the out-of-state tort victim should be denied the benefit of the more protective laws of the state where the injury occurred. On the issue of liability, he suggests general agreement that the regulatory function of standards of conduct requires application of the law of the state in which the defendant acted. On the more difficult question of the measure of damages, he argues that the out-of-state plaintiff should recover the more liberal benefits of the state of injury, despite a contention that this result is achieved at the expense of that state’s own citizen, the defendant, even though the measure of damages does not purport to be punitive. We believe that Pennsylvania would be persuaded by Professor" } ]

[ { "docid": "15733830", "title": "", "text": "S.W.2d 414, 421 (Tex.1984); Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979) (adopting the most significant relationship methodology for tort choice of law issues). This Court reviews a district court’s choice of law determination de novo. See In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 576 (5th Cir.1996). Section 6 of the ALI Restatement (Second) of Conflict of Laws delineates the general principles that inform a choice of law determination. Section 6 states: (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. In later sections, the Restatement individually addresses choice of law analysis for a variety of issues. Section 145 concerns choice of law for issues in tort and states that: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with" }, { "docid": "20394847", "title": "", "text": "examine the policies underlying the law of each jurisdiction and determine whether the conflict is “true,” “false,” or “unprovided for.” Id. “A true conflict exists when the governmental interests of [multiple] jurisdictions would be impaired if their law were not applied.” Budget Rent-A-Car Sys. v. Chappell, 407 F.3d 166, 170 (3d Cir.2005) (quoting Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 & n. 15 (3d Cir.1991)). If a true conflict exists, the Court must then determine which state has the “greater interest in the application of its law.” Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970). A false conflict exists only if one jurisdiction’s governmental interests would be impaired by the application of another jurisdiction’s law. Budget Rent-A-Car, 407 F.3d at 170. When there is a false conflict, the court must apply the law of the only interested jurisdiction. Id. If no jurisdiction’s interests would be impaired if its laws were not applied, there is an “unprovided for” conflict and lex loci delicti (the law of the place of the wrong) continues to govern. Budget Rent-A-Car Sys., 407 F.3d at 170 (citing Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983)). [T]he factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6 (1971). The relevant contacts for a tort are enumerated in Restatement (Second) of Conflict of Laws § 145(2)(a)-(d), and include: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the" }, { "docid": "9397732", "title": "", "text": "& Co. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Def, Dev. Int’l, Inc. v. Republic of Moldova, 133 F.Supp.2d 9, 15 (D.D.C.2001). “Under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Seoond) of ConfliCt of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict of Laws § 145). Section 145 also references § 6 of the Restatement for the courts to consider: When there is no [state statutory directive on choice of law,] the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity or result, and (g) ease in the determination of the law to be applied. Restatement (Seoond) of Conflict of Laws § 6 (1971); Dunkwu v. Neville, 575 A.2d 293, 296 (D.C.1990) (adopting the Restatement (Second) of Conflict of Laws § 6 (1971)). 2. Wrongful Death The plaintiffs propose two possible sources of law: (1) the law of the forum, the District of Columbia, or (2) the law of the Israel, where the plaintiffs are" }, { "docid": "16667330", "title": "", "text": "The Iowa Supreme Court in Veasley further specifically instructed that, for a tort case, such as the one now before this court, The most significant relationship test is that which is stated as follows in the Restatement (Second) Conflict of Laws: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second) Conflict of Laws § 145 (1971). We recognized in Joseph L. Wilmotte & Co. v. Rosenman Brothers, 258 N.W.2d 317, 326 (Iowa 1977), that the situation-specific sections of the Restatement, such as section 145, incorporate the provisions set forth in section 6 thereof. These principles are as follows: (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) Where there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability, and uniformity of result, and (g) ease in the determination and application of the rule to be applied. Restatement (Second) Conflict of Laws § 6 (1971). Id. at" }, { "docid": "827172", "title": "", "text": "significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. Under the Restatement approach, an Arizona court would apply Arizona law to the issue in this case unless some other state has a more significant relationship. Determination of this relationship is influenced largely by the factors set forth in §§ 6 and 145. See Bryant v. Silverman, 146 Ariz. 41, 703 P.2d 1190 (1984) (en banc). Section 145 provides: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, as to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second) of the Conflict of Laws § 145 (emphasis added). The rules set forth in § 145 are commonly referred to as the “most significant relationship” approach. The principles of § 6, referred to in § 145 above, are as follows: Choice of law principles are: (a) The needs of the interstate and international system; (b) The relevant policies of the forum; (c) The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (d) The protection of justified expectations; (e) The basic policies underlying the particular fields of law; (f) Certainty, predictability and uniformity of result; and (g) Ease of determination and application of the law to be applied. Under the Restatement analysis, the Court cannot simply apply" }, { "docid": "827173", "title": "", "text": "the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second) of the Conflict of Laws § 145 (emphasis added). The rules set forth in § 145 are commonly referred to as the “most significant relationship” approach. The principles of § 6, referred to in § 145 above, are as follows: Choice of law principles are: (a) The needs of the interstate and international system; (b) The relevant policies of the forum; (c) The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (d) The protection of justified expectations; (e) The basic policies underlying the particular fields of law; (f) Certainty, predictability and uniformity of result; and (g) Ease of determination and application of the law to be applied. Under the Restatement analysis, the Court cannot simply apply the factors in a mechanical approach through a set formula. Instead, the Court must evaluate the relevant contacts in a case according to their relative importance with respect to a particular issue and determine which state’s interests are best served by applying its rule of law to a resolution of that issue. See In re Air Crash Disaster Near Chicago, Ill., 644 F.2d 594, 610-11 (7th Cir.1981), cert. denied, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 187 (1981). In the case at bar, plaintiffs allege, under theories of negligence and products liability, that the conduct of defendants MDC, Martin-Baker and GE resulted in the death of Major Wert while he was on maneuvers in the State of Arizona. It is defendants’ position that under §§ 6 and 145, Indiana has a more significant relationship to the issues of defendants’ conduct, thus requiring application of Indiana law. Defendants rely principally on three factors: first, that this is an aircraft accident; second, that the plaintiffs and the deceased were, at all times relevant to this lawsuit," }, { "docid": "13008682", "title": "", "text": "that they would reach the same result as we do. III. In light of Massachusetts’ adoption of modern choice of law rules, we reject at the outset defendants’ contention that a court need only consider the domicile of the person whose name or likeness is being exploited to determine the law governing this action. To focus solely on that domicile would disregard the development of Massachusetts law which now calls for the “more functional approach” set forth in Bushkin, supra. Under such an approach, domicile is significant only to the extent that it implicates interests that are cognizable under an “interest” or “most significant relationship” analysis. The Second Restatement of Conflict of Laws, section 6(2) sets forth the perimeters for the kind of analysis the Massachusetts courts would employ: (2) When there is no [contrary statutory] directive, the factors relevant to the choice of applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) Conflicts of Laws (1971), quoted in Bushkin, supra, at 669. We begin our choice of law analysis with the first of the factors listed in section 6(2) of the Second Restatement — here, the needs of the international system. In the popular music industry, trade between Great Britain and the United States is pervasive and much prized. It is nurtured in part by the policy in both countries of affording the same commercial rights to foreigners as to nationals. Moreover, it might very well be unconstitutional for an American jurisdiction to extend lesser contractual rights to foreign performers in this country than to their American counterparts. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Defendants urge that" }, { "docid": "13756267", "title": "", "text": "meaning there is undisputedly a conflict between the laws — and that this is a true conflict, see Defs.’ Mem. 7-9; Pl.’s Mem. 4; (j) Because the interests of Pennsylvania and Arkansas would each be impaired if its laws were not applied, this case indeed presents a true conflict; (k) In true conflict cases, Pennsylvania choice of law rules “call for the application of the law of the state having the most significant contacts or relationships with the particular issue,” and this determination is made not by “a mere counting of contacts,” but rather by a qualitative analysis, In re Estate of Agostini, 311 Pa.Super. 233, 457 A.2d 861, 871 (1983); see also Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854, 856 (1970) (“The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale.”); (l) In other words, the relevant inquiry is “the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law,” Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179, 1181 (1994) (citation omitted); (m)To make this assessment, the Pennsylvania courts use “a methodology which is a combination of the ‘government interest’ analysis and the ‘significant relationship’ approach of Section 145 of the Restatement (Second) of Conflicts,” id. at 1180; (n) Relevant considerations include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6(2) (1971); (o) The “[cjontacts to be taken into account in applying [these] principles” include: (a) the place where the injury occurred, (b) the place where" }, { "docid": "14076938", "title": "", "text": "Andinos, S.A. v. General Elec. Del Caribe, Inc., 145 F.3d 463, 478 (1st Cir.1998); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Massachusetts employs a functional choice of laws approach that is guided by the Restatement (Second) of Conflict of Laws (1971). Clarendon Nat’l Ins. Co. v. Arbella Mut. Ins. Co., 60 Mass.App.Ct. 492, 803 N.E.2d 750, 752 (2004). The Restatement instructs courts to apply the law of the state with the “most significant relationship to the occurrence and the parties under the principles stated in § 6.” Restatement (Second) of Conflict of Laws § 145 (1971). Section 6 of the Restatement cites the following factors as relevant to choice of law decisions: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (d) the basic policies underlying the particular field of law, (e) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Id. at § 6. In the tort context, the Restatement also sets out four factors to help determine which jurisdiction has the most significant relationship: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. Id. at § 145. Defendant is correct to note that the jurisdiction where the injury occurred normally has a significant interest in having its law apply because “persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury.” Restatement (Second) of Conflict of Laws § 145(2), cmt. 2. However, even when the injury (and, indeed, even the conduct that caused the injury) occurs in a foreign location, Massachusetts choice-of-laws" }, { "docid": "19059823", "title": "", "text": "in the Restatement (Second) of Conflict of Laws §§ 6 & 145 (1971) [hereinafter Restatement (Second)]. O’Connor, 201 Conn, at 649-50, 519 A.2d 13. Section 145(1) of the Restatement provides that “[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.” Restatement (Second) § 145(1). Section 6(2), in turn, provides that where a state is not guided by a statutory directive on choice of law, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) § 6(2). The Connecticut Supreme Court has determined that Section 145(2) provides courts with guidance regarding the evaluation of the policy choices set out in Sections 145(1) and 6(2). O’Connor, 201 Conn. at 652, 519 A.2d 13. Section 145(2) assists with the application of the principles of Section 6 to tort cases by calling for consideration of: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. Restatement (Second) § 145(2). These factors are “to be evaluated according to their relative importance with respect to the particular issue.” Id. The district court correctly decided to apply Sections 6 and 145 of the Restatement rather than lex loci delicti. It applied the factors in Section 145(2) to determine whether Connecticut or Nigeria has" }, { "docid": "11634576", "title": "", "text": "governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict of Laws § 145). Section 145 also references § 6 of the Restatement for the courts to consider: [w]hen there is no [state statutory directive on choice-of-law,] the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination of the law to be applied. Restatement (Second) of Conflict of Laws § 6 (1971); Dunkwu v. Neville, 575 A.2d 293, 296 (D.C.1990) (adopting the Restatement (Second) of Conflict of Laws § 6 (1971)). 3. The District of Columbia’s Choice-of-Law Analysis Requires Application of Massachusetts Law There are three possible sources of law: (1) the law of the plaintiffs domicile state, Massachusetts, (2) the law of the forum state, the District of Columbia, and (3) the law of the foreign state where the alleged injuries occurred, Lebanon. While Lebanon clearly has some degree of interest in adjudication of this matter because the hostage-taking occurred within its borders, the complicated factual nature of this ease points away from Lebanon contacts and interests. First," }, { "docid": "6316695", "title": "", "text": "of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict of Laws § 145). Section 145 also references § 6 of the Restatement for the courts to consider: [wjhen there is no [state statutory directive on choice-of-law,] the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination of the law to be applied. Restatement (Second) of Conflict of Laws § 6 (1971); Dunkwu v. Neville, 575 A.2d 293, 296 (D.C.1990) (adopting the Restate ment (Second) of Conflict of Laws § 6 (1971)). c. The District of Columbia’s Choice-of-Law Analysis Requires Application of Texas and Tennessee Law There are three possible sources of law mentioned by the parties in this case: (1) the law of the domicile states of the respective plaintiffs (Texas and Tennessee), (2) the law of the forum state (the District of Columbia), and (3) the law of the foreign state where the alleged injuries occurred (Turkey). Syria addresses the choice of law analysis with a flat and analytically empty assertion that Turkish law “would be the correct choice-of-law for any tort claims that may exist along the lines alleged by the plaintiffs.” Def.’s Mot. at 1. The court previously" }, { "docid": "15508109", "title": "", "text": "proceedings consistent with this opinion. III. CONCLUSION The judgment of dismissal is VACATED and the case is REMANDED. . Although Mirant was a debtor-in-possession, the issues in this case focus primarily on the powers of a bankruptcy trustee. This is because a debtor-in-possession has many of the powers of a bankruptcy trustee. See 11 U.S.C. § 1107. . Restatement (Second) of Conflict of Laws §§ 6 & 145 (1971). § 6. Choice-Of-Law Principles (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (£) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. § 145. The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. . The Uniform Fraudulent Transfer Act, which subjects certain guarantees to fraudulent transfer law, has been adopted by 43 states. Legislative Fact Sheet" }, { "docid": "6751538", "title": "", "text": "potential liability for product defects to that established contractually by the parties. Since the Lockheed division that designed and manufactured the Jetstar has its principal place of business in Georgia, Lockheed is among those intended to be protected by the rule. Application of Wisconsin law in this case would thus result in the frustration of Georgia’s policy, which is in accord with that of Illinois, without furthering the legitimate policy concerns of any other interested state. This is precisely the kind of illogical choice-of-law result that the Illinois Supreme Court sought to avoid by abandoning the old lex loci delicti rule, under which the law of the place of injury is always controlling, in favor of the more flexible “most significant relationship” test. Indeed, in Ingersoll itself, the court declined to apply the law of Iowa, which was indisputably the place of injury, because the situs of the injury was fortuitous and Iowa had no other contacts with the litigation. Since Georgia and Illinois are the same, Illinois law is controlling here. For the foregoing reasons, we conclude that the district court’s application of Wisconsin law in this case is inconsistent with both the result and the principles enunciated in Ingersoll. Accordingly, the judgment is reversed. . Section 6 provides in pertinent part that the general factors relevant to choosing the applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) the ease in the determination and application of the law to be applied. Section 145(1) sets forth the general principle that “The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties" }, { "docid": "22045186", "title": "", "text": "a valid choice-of-law clause, the law of the state with the most significant relationship to the particular substantive issue will be applied to resolve that issue.” Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). Texas follows Restatement (Second) of CONFLICT of Laws § 6, which provides: (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Furthermore, section 145 lists the factual matters that a Texas court will consider when applying section 6: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Seoond) of Conflict of Laws § 145 (1971); Crisman v. Cooper Indus., 748 S.W.2d 273, 276-77 (Tex.App. — Dallas 1988, writ denied). Furthermore, the application of the significant relationship test does not “turn on the" }, { "docid": "20394848", "title": "", "text": "continues to govern. Budget Rent-A-Car Sys., 407 F.3d at 170 (citing Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983)). [T]he factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6 (1971). The relevant contacts for a tort are enumerated in Restatement (Second) of Conflict of Laws § 145(2)(a)-(d), and include: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Taylor v. Mooney Aircraft Corp., 265 Fed.Appx. 87, 91 (3d Cir.2008). Our Court of Appeals has reasoned that Pennsylvania choice of law analysis “employs depecage, the principle whereby different states’ laws may apply to different issues in a single case.” Taylor, 265 Fed.Appx. at 91 (citing Berg Chilling Systems, Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006); Broome v. Antlers’ Hunting Club, 595 F.2d 921, 924 (3d Cir.1979)). Therefore, the Court must separately analyze the law of the potentially interested jurisdictions (i.e., Iraq, Pennsylvania, Tennessee and Texas) regarding each of the disputed legal issues. Those disputed legal issues are: (1) principles of causation; (2) the availability of damages for pain and suffering; and, (3) the availability of punitive damages. The Court will analyze the applicable principles, in turn. a. Liability — Causation i. Actual Conflict of Laws There is an actual conflict of laws between the laws of Iraq, Pennsylvania, Tennessee and Texas as to causation and, more specifically, whether a second negligent actor may" }, { "docid": "13756268", "title": "", "text": "a priority of interest in the application of its rule of law,” Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179, 1181 (1994) (citation omitted); (m)To make this assessment, the Pennsylvania courts use “a methodology which is a combination of the ‘government interest’ analysis and the ‘significant relationship’ approach of Section 145 of the Restatement (Second) of Conflicts,” id. at 1180; (n) Relevant considerations include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6(2) (1971); (o) The “[cjontacts to be taken into account in applying [these] principles” include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the rela tionship, if any, between the parties is centered. Id. § 145(2); (р) We now review the relevant contacts to which the parties stipulated: (a) Arkansas is the state in which plaintiffs decedent (1) lived and maintained residency for several years before his death; (2) received all medical care associated with his depression, including his prescription for Effexor XR; (3) purchased Effexor XR; (4) received any representations, express warranties, or warnings concerning Effexor XR; (5) experienced any reactions to Effexor XR; and (6) committed suicide, see Stip. of Facts I ¶¶ a-b, e-n; (b) Decedent’s estate is also administered in Arkansas and his administratrix is an Arkansas resident, see id. I ¶¶ c-d; (с) Both Wyeth and Wyeth Pharmaceuticals, a wholly-owned subsidiary of Wyeth, are Delaware corporations, and Wyeth’s principal place of business is in New Jersey, see id. II ¶¶ a-e; (d) Regarding Pennsylvania contacts, it is:" }, { "docid": "22453714", "title": "", "text": "to the occurrence and the parties, in which event the local law of the other state will be applied. § 178. Damages. The law selected by application of the rule of § 175 determines the measure of damages in an action for wrongful death. . The Restatement (Second), § 6, (1971), provides: § 6 Choice of Law Principles (1) A court, subject to constitutional restriction, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectation, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. . The Restatement (Second), § 145, provides: § 145 The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. . See Id., § 145, Comment c, at 416-17. . Moreover, the place where the relationship is centered would seem to have a low interest in either punishment or protection merely" }, { "docid": "2492844", "title": "", "text": "consider in the “more significant relationship” test include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Id. at § 6(2) (quoted in Harris, 820 F.2d at 1004 n. 4). Applying these factors, we conclude that Mexico does not have a more significant relationship to this suit than California, the place of injury. Mexico’s policy is to limit the liability of its resident defendants in wrongful death actions. Hurtado v. Superior Court, 11 Cal.3d 574, 583, 522 P.2d 666, 671, 114 Cal.Rptr. 106, 111 (1974). California’s rule allowing full recovery serves two policies: (1) providing full compensation for the survivors of its residents, id. at 584, 522 P.2d at 672, 114 Cal.Rptr. at 112, and (2) deterring wrongful conduct within its borders, “said interest extending to all persons present within its borders.” Id. (emphasis added). Given those competing policies, we cannot say that Mexico has a more significant relationship to this litigation. Applying California law in this case “furthers the choice-of-law values of certainty, predictability and uniformity of result and ... ease in the determination and application of the applicable law.” Restatement (Second) of Conflict of Laws § 175 comment d; see Harris, 820 F.2d at 1004 (applying law of place of injury, under Second Restatement analysis, in suit arising out of airplane crash). The district court’s determination that California law applies is affirmed. IV The district court correctly determined that sovereign immunity does not apply to the defendants in this case. Although it followed the wrong path in deciding the choice of law issue, it correctly concluded that California law applies. AFFIRMED. . Exportadora is considered an \"agency or instrumentality of a foreign state” under 28 U.S.C. §§ 1603(a) & 1603(b)(2), because Mexico" }, { "docid": "22575298", "title": "", "text": "at 201-202 & n. 3, 491 N.Y.S.2d at 98 & n. 3, 480 N.E.2d at 687-88 & n. 3 (parties’ reasonable expectations of applicable law are relevant to choice of law analysis). Also important, the harm suffered by the plaintiff — loss of society, loss of financial support and loss of services — occurred in Ohio, where the plaintiff and the decedent resided, and where the plaintiff survives. We therefore hold that under New York’s choice of law rules, the law of this plaintiffs state governs compensa-bility of damages. We reach the same conclusion when we apply federal common law conflict of law principles. As noted above, federal courts frequently consult the Restatement (Second) of Conflict of Laws in crafting these principles. Section 145 states that “[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.” Restatement (Second) of Conflict of Laws § 145(1) (1971) (emphasis added). Section 145 also directs the court to consider where the injury occurred, where the conduct creating the injury occurred, and where the parties are domiciled. Id. § 145(2). Section 6 -adds the following factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Id. § 6. The “interest analysis” set forth in the Restatement coincides with New York’s choice of law rules. For reasons previously stated, few, if any, of the factors listed above militate in favor of compensating this plaintiffs damages under Scottish or New York law. Here, too, it matters that the harms inflicted on the plaintiff (loss" } ]

[ { "docid": "6337613", "title": "", "text": "parties’ desire to achieve a particular tax result necessarily relevant. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278 ,286, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). [435 U.S. at 573.] However, under the circumstances in Frank Lyon Co., the Supreme Court found that the substance of the challenged transactions were as structured, noting that where— there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties. [435 U.S. at 583-584.] Bearing these fundamental precepts in mind, we now must examine the transactions before us to determine whether they amount to sales of cattle. The term \"sale” is given its ordinary meaning for Federal income tax purposes and is generally defined as a transfer of property for money or a promise to pay money. Commissioner v. Brown, 380 U.S. 563, 570-571 (1965). The key to deciding whether petitioners’ transactions with Cattle Co. are sales is to determine whether the benefits and burdens of ownership have passed from Cattle Co. to petitioners. This is a question of fact which must be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attending facts and circumstances. Haggard v. Commissioner, 24 T.C. 1124, 1129 (1955), affd. 241 F.2d 288 (9th Cir. 1956). Some of the factors which have been considered by courts in making this determination are: (1) Whether legal title passes (Commissioner v. Segall, 114 F.2d 706, 709 (6th Cir. 1940), cert. denied 313 U.S. 562 (1941); Oesterreich v. Commissioner, 226 F.2d 798, 802 (9th Cir. 1955)); (2) how the parties treat the transaction (Oesterreich v. Commissioner, supra at 803); (3) whether an equity was acquired in the property (Haggard v. Commissioner, 241 F.2d 288, 289 (9th Cir. 1956); Oesterreich v. Commissioner, supra at 803; see Mathews v. Commissioner, 61 T.C. 12, 21-23 (1973), revd. 520 F.2d 323 (5th Cir. 1975), cert. denied 424" } ]

[ { "docid": "12084101", "title": "", "text": "Purpose of Depreciation Deductions The crux of this appeal centers on the ownership of motion pictures. Durkin and Grossman had claimed ownership of several films and accordingly recognized depreciation deductions on their tax returns. Taxpayers purport to have acquired ownership of the subject films as a result of a circular series of transactions between Paramount Pictures Corp. (“Paramount”), Film Writers Co. (“FWC”) and the two partnerships in which taxpayers have an ownership interest. FWC, a California corporation, purchased the six films at issue from Paramount between November 2, 1977, and May 25, 1978. Balmoral Associates, Ltd. (“Balmoral”), formed on October 24, 1977, purchased “First Love” and “The One and Only” from FWC on November 2, 1977, and December 2, 1977, respectively. Shel-burne Associates, Ltd. (“Shelburne”) was organized on December 1, 1977, and purchased from FWC “Heaven Can Wait” on December 2, 1977, and “Grease,” “Foul Play” and “The Bad News Bears Go To Japan” (“Bears 3”) on May 25, 1978. The Shelburne and Balmoral partnerships immediately entered into distribution agreements of 28-year durations with Paramount under which Paramount acquired the exclusive right and privilege to distribute, exhibit, market, reissue and otherwise exploit the six films in return for a share in the gross receipts from exploitation of the films. Durkin became a limited partner in Balmoral Associates by paying $35,000 for one-half unit. Similarly, Grossman became an indirect limited partner in Shelburne Associates by purchasing one unit for $316,000. Whether Balmoral and Shelburne became the owners of the films for tax purposes is a question of fact to be determined by the written agreements, attendant facts and circumstances. United States v. Wernentin, 354 F.2d 757, 762-763 (8th Cir.1965); Tolwinsky v. Commissioner, 86 T.C. 1009, 1041 (1986). The Tax Court’s findings of fact may not be disturbed on appeal unless clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 575-576, 105 S.Ct. 1504, 1512-1513, 84 L.Ed.2d 518 (1985). It is axiomatic that the substance of a transaction rather than its form controls for federal tax purposes. Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708," }, { "docid": "4860545", "title": "", "text": "1237 (1981); Miller v. Commissioner, 68 T.C. 767, 776 (1977); see Fields v. Commissioner, 14 T.C. 1202, 1210-1213 (1950), affd. 189 F.2d 950 (2d Cir. 1951). It is well established that the economic substance of a transaction rather than the form in which it is cast is determinative of its tax consequences. See Golsen v. Commissioner, 54 T.C. 742, 754 (1970), affd. 445 F.2d 985 (10th Cir. 1971), and the cases cited therein. Thus, in a number of cases, courts have refused to permit the transfer of formal legal title to shift the incidence of taxation attributable to ownership of the property where the transferor continues to retain significant control over the property transferred. E.g., Helvering v. Clifford, 309 U.S. 331 (1940); Helvering v. F. & R. Lazarus Co., 308 U.S. 252 (1939); Law v. Commissioner, 86 T.C. 1065 (1986); Hilton v. Commissioner, 74 T.C. 305 (1980), affd. 671 F.2d 316 (9th Cir. 1982); Miller v. Commissioner, supra at 767. “[Tjaxation 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 (1930). It is therefore fundamental that the availability of a depreciation deduction is not predicated on the mere holding of legal title to property but rather upon a capital investment in the property. Gladding Dry Goods Co. v. Commissioner, 2 B.T.A. 336 (1925). Ownership of a motion picture negative is distinct from ownership of the copyright thereto (17 U.S.C. sec. 27 (1976); 17 U.S.C. sec. 202 (1982) (effective Jem. 1, 1978); Michael Todd Co. v. Los Angeles County, 57 Cal. 2d 684, 371 P.2d 340, 21 Cal. Rptr. 604 (1962), and cases cited therein), and ownership of the former without possession of at least certain of the rights encompassed by the latter is commercially valueless (see Misbourne Pictures Ltd. v. Johnson, 189 F.2d 774, 776 (2d Cir. 1951)). Copyrights are monopolies; “they entitle the owner to prohibit various kinds of reproduction, and to relieve individuals of these prohibitions by licenses.” Goldsmith v." }, { "docid": "3002390", "title": "", "text": "a profit; (3) the recourse promissory note constituted a genuine indebtedness fully includable in determining the films’ basis for depreciation; (4) Andrama I is entitled to deduct interest accrued, but not paid, in 1979; and (5) production expenses for purposes of computing Andrama I’s investment tax credit basis include amounts incurred, but not paid, in 1979. Respondent’s initial argument is that Andrama I did not, in substance, purchase an ownership interest in the films, and thus is not entitled to the deductions which would flow from such ownership. He argues that, despite the transaction’s being labeled as a sale, it was nothing more than a mere financing arrangement and that no actual purchase took place. Petitioners, on the other hand, contend that the substance of the transaction comports with its form and that the partnership did, in fact, purchase the films from Andrama Films. It is well established that for Federal tax purposes a transaction will be governed by its substance rather than by its form. Gregory v. Helvering, 293 U.S. 465 (1935). Accordingly, we look “to the objective economic realities of [the] transaction rather than to the particular form the parties employed” (Frank Lyon v. United States, 435 U.S. 561, 573 (1978)), in order to determine whether a bona fide sale of the films was effectuated. The critical test is whether the benefits and burdens of ownership actually passed from Andrama Films to the partnership, which “is a question of fact which must be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attending facts and circumstances.” Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981). See also Leahy v. Commissioner, 87 T.C. 56, 66-67 (1986). A sale of a motion picture will be recognized for purposes of Federal taxation only “when there is a transfer of all substantial rights of value in the motion picture copyright.” Tolwinsky v. Commissioner, 86 T.C. 1009, 1042 (1986). Accordingly, no sale will occur “if the transferor retains proprietary rights in the motion picture.” Tolwinsky v. Commissioner, supra at 1043. See" }, { "docid": "10401032", "title": "", "text": "him to participate, through Lionel, in TBC Films’ motion picture ventures in order to allow the investors to be “at risk” for tax purposes without being at any genuine risk of loss. We therefore conclude that the assumption agreements did not represent bona fide obligations and that they and Lionel must be disregarded for purposes of determining the true nature of the interest acquired by Hart and the tax liabilities of its partners. As the Supreme Court explained in Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945), “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.” We turn now to the issue of the nature of the interest acquired by Hart. It is axiomatic that the economic substance of a transaction rather than the form in which it is cast is determinative of its tax consequences. See Golsen v. Commissioner, 54 T.C. 742, 754 (1970), affd. 445 F.2d 985 (10th Cir. 1971), and the cases cited therein. Thus, in a number of cases, courts have refused to permit the transfer of formal legal title to shift the incidence of taxation attributable to ownership of the property where the transferor continues. to retain significant control over the property transferred. E.g., Helvering v. Clifford, 309 U.S. 331 (1940); Helvering v. F. & R. Lazarus Co., 308 U.S. 252 (1939); Hilton v. Commissioner, 74 T.C. 305 (1980), affd. 671 F.2d 316 (9th Cir. 1982); Miller v. Commissioner, 68 T.C. 767 (1977). “[T]axation 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 (1930). It is therefore fundamental that the availability of a depreciation deduction is not predicated upon the ownership of property but rather upon a capital investment in the property. Gladding Dry Goods Co. v. Commissioner, 2 B.T.A. 336 (1925). In the case before us, EMI purportedly sold to" }, { "docid": "3914660", "title": "", "text": "and objective of making a profit, the expenses and losses attributable to the transaction or activity are deductible as trade or business expenses under section 162, as expenses incurred for the production of income under section 212, or as losses under section 165. See Commissioner v. Groetzinger, 480 U.S (1987); Capek v. Commissioner, 86 T.C. 14, 36 (1986); Lemmen v. Commissioner, 77 T.C. 1326, 1340 (1981); Jasionowski v. Commissioner, 66 T.C. 312, 318-319 (1976). Whether a taxpayer has an actual and honest profit objective is a question of fact, to be resolved on the basis of all the facts and circumstances of the case, and greater weight should be given to objective facts than to mere statements of intent by the taxpayer. Sec. 1.183-2(b), Income Tax Regs.; Gefen v. Commissioner, 87 T.C. 1471, 1497 (1986); Dreicer v. Commissioner, 78 T.C. 642, 645 (1982), affd. without opinion 702 F.2d 1205 (D.C. Cir. 1983). To be sure, a transaction’s ;economic substance (or lack thereof) is an objective fact tb be considered in determining whether a taxpayer participated in the transaction with the requisite profit objective. However, in my view, the presence or absence of economic substance, standing alone, is not dispositive as the majority so holds; rather, as we noted in Dreicer v. Commissioner, supra at 645, “[the taxpayer’s] motive is the ultimate question.” Because the majority holds that expenses and losses attributable to a transaction that lacks economic substance are not deductible regardless of whether the taxpayer participated in the transaction with the primary purpose and objective of making a profit, I dissent. I do not mean to suggest that a taxpayer’s profit motive (or lack thereof) is relevant in determining whether a transaction constitutes a bona fide sale in the first instance. Whether a transaction constitutes a sale for tax purposes depends on whether the benefits and burdens ‘of ownership pass from one party to another. Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981). As we noted in Grodt & McKay Realty, Inc., however, a transaction that purports to be a sale, but which is not," }, { "docid": "5207408", "title": "", "text": "The only question we are asked to decide is whether petitioner, through his limited partnership interest in Lorelei, was an “owner” of the movie “Overboard” so as to be entitled to claim both depreciation and investment tax credit in connection with the investment. Respondent does not question the value or bona fides of the subject matter, but only whether Lorelei acquired an ownership interest. Although respondent has broken the question of entitlement to depreciation and investment tax credit into two separate arguments, we find it more convenient to discuss them together. Accordingly, we shall analyze to what extent, if any, ownership of the movie transferred from the producer, Factor, to Lorelei. Petitioner asserts that the transfer was achieved by means of a sale. A sale is a transfer of property for money or a promise of payment. Commissioner v. Brown, 380 U.S. 563, 570-571 (1965). For purposes of Federal taxation, a sale occurs upon the transfer of the benefits and burdens of ownership, rather than upon the satisfaction of the technical requirements for the passage of title under State law. Houchins v. Commissioner, 79 T.C. 570, 590 (1982); Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981). The consideration of whether the benefits and burdens have been transferred is essentially a factual determination and as outlined in Houchins v. Commissioner, supra at 591, is to be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attendant facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, supra. Among the factors to be considered in making this determination are: (1) Whether legal title passes; (2) the manner in which the parties treat the transaction; (3) whether the purchaser acquired any equity in the property; (4) whether the purchaser has any control over the property and, if so, the extent of such control; (6) whether the purchaser bears the risk of loss or damage to the property; and (6) whether the purchaser will receive any benefit from the operation or disposition of the property. See Grodt & McKay Realty, Inc." }, { "docid": "5207409", "title": "", "text": "of title under State law. Houchins v. Commissioner, 79 T.C. 570, 590 (1982); Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981). The consideration of whether the benefits and burdens have been transferred is essentially a factual determination and as outlined in Houchins v. Commissioner, supra at 591, is to be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attendant facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, supra. Among the factors to be considered in making this determination are: (1) Whether legal title passes; (2) the manner in which the parties treat the transaction; (3) whether the purchaser acquired any equity in the property; (4) whether the purchaser has any control over the property and, if so, the extent of such control; (6) whether the purchaser bears the risk of loss or damage to the property; and (6) whether the purchaser will receive any benefit from the operation or disposition of the property. See Grodt & McKay Realty, Inc. v. Commissioner, supra at 1237-1238. * * * [Fn. ref. omitted.] The passage of title to a motion picture is accomplished through the transfer of both the negative and copyright. The basic principles to be considered were outlined and set forth in Tolwinsky v. Commissioner, 86 T.C. 1009, 1041-1043 (1986), as follows: Ownership of a motion picture negative is distinct from ownership of the copyright thereto (17 U.S.C. sec. 202 (1982) (effective Jan. 1, 1978); Michael Todd Co. v. Los Angeles County, 57 Cal. 2d 684, 371 P.2d 340, 21 Cal. Rptr. 604 (1962), and cases cited therein), and ownership of the former without possession of at least certain of the rights encompassed by the latter is commercially valueless. See Misbourne Pictures Ltd. v. Johnson, 189 F.2d 774, 776 (2d Cir. 1951). Copyrights are monopolies; “they entitle the owner to prohibit various kinds of reproduction, and to relieve individuals of these prohibitions by licenses.” Goldsmith v. Commissioner, 143 F.2d 466, 467 (2d Cir. 1944) (L. Hand, J., concurring), affg. on other grounds 1 T.C. 711" }, { "docid": "4860543", "title": "", "text": "and $14,689 in 1980. In his notices of deficiency, the Commissioner disallowed in full the losses and investment credits claimed by the Durkins and Grossmans. OPINION Many persons have invested in partnerships like Balmoral and Shelburne that purchased interests in the negatives of motion pictures. This case has been selected as a test case with the hope that it will resolve all the issues involved in the similar cases. The first issue for decision is whether Balmoral and Shelburne became the owners of their respective motion pictures for purposes of computing allowable depreciation. For the years 1977 and 1978, the Commissioner raised such issue after issuing the notices of deficiency. For the years 1979 and 1980, such issue was raised in the notices of deficiency. Therefore, the Commissioner bears the burden of proof with respect to this issue for the years 1977 and 1978, and the petitioners bear such burden for 1979 and 1980. Rule 142(a), Tax Court Rules of Practice and Procedure. The Commissioner argues that by virtue of the distribution agreements, Paramount acquired the irrevocable right to exploit the films, throughout the world, for their entire economic lives, if not in perpetuity. As a result of such agreements, the partnerships conveyed to Paramount all substantial rights in the motion pictures, and retained no interest upon which a deduction for depreciation can be based. Therefore, the amount received by the partnerships as a result of Paramount’s exploitation of the films was a return of basis, and the excess, if any, was ordinary income. The petitioners contend that the partnerships owned the six motion pictures involved in this case. Such ownership arose through the purchase and acquisition agreements and was retained by the partnerships because the distribution agreements reserved certain critical substantial rights for the partnerships. 'Whether the partnerships became the owners of the motion pictures for tax purposes as a result of the transactions involved herein is a question of fact to be determined by reference to the written agreements read in light of the attending facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221," }, { "docid": "10401033", "title": "", "text": "(10th Cir. 1971), and the cases cited therein. Thus, in a number of cases, courts have refused to permit the transfer of formal legal title to shift the incidence of taxation attributable to ownership of the property where the transferor continues. to retain significant control over the property transferred. E.g., Helvering v. Clifford, 309 U.S. 331 (1940); Helvering v. F. & R. Lazarus Co., 308 U.S. 252 (1939); Hilton v. Commissioner, 74 T.C. 305 (1980), affd. 671 F.2d 316 (9th Cir. 1982); Miller v. Commissioner, 68 T.C. 767 (1977). “[T]axation 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 (1930). It is therefore fundamental that the availability of a depreciation deduction is not predicated upon the ownership of property but rather upon a capital investment in the property. Gladding Dry Goods Co. v. Commissioner, 2 B.T.A. 336 (1925). In the case before us, EMI purportedly sold to Hart the motion picture negative and all copyrights thereto, excepting all remake, sequel, and television production rights and subject to the rights granted Universal under the production-financing-distribution agreement. Concurrently, under the British Lion distribution agreement, British Lion (EMI) was granted certain rights with respect to the motion picture. Whether Hart became the owner of the motion picture for tax purposes as a result of such transactions is a question of fact to be determined by reference to the written agreements read in light of the attending facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981); Miller v. Commissioner, 68 T.C. at 776; see Fields v. Commissioner, 14 T.C. 1202, 1210-1213 (1950), affd. 189 F.2d 950 (2d Cir. 1951). Ownership of a motion picture negative is distinct from ownership of the copyright thereto (17 U.S.C. sec. 202 (1982) (effective Jan. 1, 1978); Michael Todd Co. v. Los Angeles County, 57 Cal. 2d 684, 371 P.2d 340, 21 Cal. Rptr. 604 (1962), and cases cited therein), and ownership of the former" }, { "docid": "2457603", "title": "", "text": "disregarded for Federal income tax purposes. Benefits and Burdens of Ownership Respondent’s next contention is that Regency did not acquire sufficient benefits and burdens of ownership to be considered the owner of the equipment for Federal tax purposes. Our holding that the transaction in question is not to be disregarded for Federal tax purposes does not foreclose further discussion of whether the form of the transaction must be accepted for Federal tax purposes. Packard v. Commissioner, supra at 419, citing Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945). Respondent contends that petitioner does not possess sufficient attributes of ownership to be considered the owner of the computer equipment. Petitioner’s position, of course, is to the contrary. In Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221 (1981), we stated, The term “sale” is given its ordinary meaning for Federal income tax purposes and is generally defined as a transfer of property for money or a promise to pay money. Commissioner v. Brown, 380 U.S. 563, 570-571 (1965). The key to deciding whether petitioners’ transactions * * * are sales is to determine whether the benefits and burdens of ownership have passed * * * to petitioners. This is a question of fact which must be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attending facts and circumstances. Haggard v. Commissioner, 24 T.C. 1124, 1129 (1955), affd. 241 F.2d 288 (9th Cir. 1956). * * * [77 T.C. at 1237.] In Grodt & McKay Realty, Inc. we also enumerated certain factors which are often relevant to determining whether a sale has occurred, such as: (1) Whether legal title passed; (2) whether the parties treated the transaction as a sale; (3) whether the alleged purchaser acquired an equity in the property; (4) whether the contract of sale creates a present obligation on the seller to execute and deliver a deed and a present obligation on the purchaser to make payments; (5) whether the purchaser is vested with the right of possession; (6) whether the purchaser pays property taxes following" }, { "docid": "8329490", "title": "", "text": "Co., 324 U.S. 331, 334, 65 S. Ct. 707, 89 L. Ed. 981 (1945). Nor is the parties’ desire to achieve a particular tax result necessarily relevant. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 286, 80 S. Ct. 1190, 4 L. Ed. 2d 1218 (1960). In order to determine the substance of the transaction before us, all of the documents executed by petitioner in entering the transaction must be considered together. The record reveals that both FSF and SMS were under the direction and control of Mr. Judge and that the agreements between petitioner and both entities were entered into contemporaneously pursuant to a preconceived plan. The documents, themselves, demonstrate their interdependence. After carefully reviewing these documents and the attendant circumstances, we are convinced that the transaction herein under consideration did not constitute a sale. Generally, a sale is a transfer of property for money or a promise to pay money. Commissioner v. Brown, 380 U.S. 563, 570-571 (1965). For purposes of Federal income taxation, a sale occurs upon the transfer of the benefits and burdens of ownership rather than upon the satisfaction of the technical requirements for the passage of title under State law. Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981); Derr v. Commissioner, supra at 723. The question of whether the benefits and burdens of ownership have been transferred is essentially one of fact to be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attendant facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, supra. Among the factors to be considered in making this determination are: (1) Whether legal title passes; (2) the manner in which the parties treat the transaction; (3) whether the purchaser acquired any equity in the property; (4) whether the purchaser has any control over the property and, if so, the extent of such control; (5) whether the purchaser bears the risk of loss or damage to the property; and (6) whether the purchaser will receive any benefit from the operation or disposition of the property." }, { "docid": "5207419", "title": "", "text": "for use by Factor to pay for part of the $1,487,445 production costs. Considering the foregoing, we are convinced that the movie was a viable property and that Lorelei had acquired an ownership interest that would entitle its limited partners to claim both depreciation and investment tax credit. We do not find, however, that the ownership interest was acquired, as alleged, by means of a purchase and sale of the photoplay. This transaction was not a transfer of property for money or a promise of payment. Commissioner v. Brown, 380 U.S. 563 (1965). Instead, the transaction is one where Lorelei was permitted to join the owner of a photoplay and producer of a movie to jointly own, exploit, and participate in the profits from the subject asset. Factor did not give up all of its interest nor did Lorelei acquire unfettered right, but rather the parties now share the asset in a joint venture. See Podell v. Commissioner, 55 T.C. 429, 431 (1970), and cases cited therein. Further, their joint venture falls within the definition of a partnership for Federal income tax purposes. Long v. Commissioner, 77 T.C. 1045, 1064-1065 (1981). The facts of this case are distinguishable from those set forth in Tolwinsky v. Commissioner, 86 T.C. 1009 (1986), and Law v. Commissioner, 86 T.C. 1065 (1986). It is well established that the economic substance of a transaction, rather than its form, controls for Federal tax purposes. Gregory v. Helvering, 293 U.S. 465 (1935); Derr v. Commissioner, 77 T.C. 708 (1981). We must be concerned with the economic realities and not necessarily the form employed by the parties. Frank Lyon Co. v. United States, 435 U.S. 561 (1978); Estate of Franklin v. Commissioner, 64 T.C. 752 (1975), affd. on other grounds 544 F.2d 1045 (9th Cir. 1976). As important, we should not disregard the existence of an asset for which Congress intended tax advantages merely because the parties attempted to maximize the advantage of those benefits for one of the parties to a transaction. Respondent should recognize that in instances where there are no shams and depreciable assets exist," }, { "docid": "4860548", "title": "", "text": "all substantial rights of value in the motion picture copyright. Tolwinsky v. Commissioner, 86 T.C. 1009, 1042-1043 (1986), and the cases cited therein. No sale occurs if the transferor retains substantial proprietary rights in the motion picture. See Carnegie Productions, Inc. v. Commissioner, 59 T.C. 642, 653 (1973); Cory v. Commissioner, 23 T.C. 775 (1955), affd. 230 F.2d 941 (2d Cir. 1956). An examination of the various written agreements reveals that the partnerships acquired and retained no substantial ownership rights in the motion pictures. Under the acquisition agreements, FWC purportedly obtained from Paramount a copyright, without sequel rights, for each motion picture. FWC purportedly transferred all such rights to the partnerships. The partnerships, according to the distribution agreements, then transferred back to Paramount all of the basic rights associated with a copyright, while retaining a “bare” copyright. For each motion picture, all the documents evidencing such transactions were executed at the same time. This series of transfers resulted in Paramount’s having the rights to make copies of the motion pictures, to distribute copies of the motion pictures to the public, to show the motion pictures to the public, and to otherwise exploit any dramatic material contained in the motion pictures. Such rights applied to theatrical exploitation, pay television, video cassettes, and commercial television throughout the world. Such enumerated rights combined with Paramount’s retention of motion picture sequel rights provided Paramount with the entire bundle of rights that is a copyright. The transactions also resulted in Paramount’s retaining rights and liabilities commonly associated with ownership. Paramount had the right to designate the laboratory that made copies of the motion pictures, and it was to pay all the costs related to storage and the making of copies. It had the right to determine the title of each film and the opening advertising and initial theatrical release of the motion pictures in the United States and Canada. Paramount could sue in its own name for copyright infringement. It was given exclusive worldwide rights to the soundtrack of the films and could license such rights. Paramount could add its name to the picture and" }, { "docid": "3631536", "title": "", "text": "Commissioner, T.C. Memo. 1986-369. (e) Mining ventures. — Capek v. Commissioner, 86 T.C. 14 (1986); Thomas v. Commissioner, 84 T.C. 1244 (1985), affd. 792 F.2d 1256 (4th Cir. 1986); Ramsay v. Commissioner, 83 T.C. 793 (1984). (f) Films. — Brannen v. Commissioner, 78 T.C. 471 (1982), affd. 722 F.2d 695 (11th Cir. 1984); Jameson v. Commissioner, T.C. Memo. 1985-262; Jaros v. Commissioner, T.C. Memo. 1985-31; van Allen v. Commissioner, T.C. Memo. 1983-619, affd. without published opinion 753 F.2d 1085 (9th Cir. 1985). In any case where a taxpayer establishes a business purpose, i.e., an actual and honest profit objective, we may still recharacterize the terms of the transactions to accord with what we perceive to be the reality of the situation. See Waddell v. Commissioner, 86 T.C. 848, 902 (1986), and Noonan v. Commissioner, T.C. Memo. 1986-449 (Innovations/Inventions); Tolwinsky v. Commissioner, 86 T.C. 1009, 1040 (1986); Law v. Commissioner, 86 T.C. 1065, 1092 (1986); Abramson v. Commissioner, 86 T.C. 360, 374 (1986); Sheid v. Commissioner, T.C. Memo. 1985-402; and Siegel v. Commissioner, 78 T.C. 659 (1982) (Films). While the subjective test is thus well founded in section 183, a unified approach emphasizing objective factors is preferable in cases involving generic tax shelters, i.e., those having the characteristics listed above at pages 412-413. First, because this approach emphasizes objective factors, it is more susceptible to consistent and predictable application. Second, because it does not require weighing the objective facts against a taxpayer’s statement of his intent, it should be more understandable to taxpayers who doubt our ability to determine their subjective state of mind. Third, taxpayers similarly situated will be treated the same for tax purposes. Fourth, the test allows us to separate the real economic aspects froln the “financial fantasies” surrounding a transaction and to apply the tax laws accordingly, rather than to disallow all deductions (or limit them to gross income under section 183(b)(2), which in the typical case is zero). As applied below, the objective and subjective tests merge into an approach in which the objective test incorporates factors considered relevant in cases decided under section 183, as" }, { "docid": "5207420", "title": "", "text": "of a partnership for Federal income tax purposes. Long v. Commissioner, 77 T.C. 1045, 1064-1065 (1981). The facts of this case are distinguishable from those set forth in Tolwinsky v. Commissioner, 86 T.C. 1009 (1986), and Law v. Commissioner, 86 T.C. 1065 (1986). It is well established that the economic substance of a transaction, rather than its form, controls for Federal tax purposes. Gregory v. Helvering, 293 U.S. 465 (1935); Derr v. Commissioner, 77 T.C. 708 (1981). We must be concerned with the economic realities and not necessarily the form employed by the parties. Frank Lyon Co. v. United States, 435 U.S. 561 (1978); Estate of Franklin v. Commissioner, 64 T.C. 752 (1975), affd. on other grounds 544 F.2d 1045 (9th Cir. 1976). As important, we should not disregard the existence of an asset for which Congress intended tax advantages merely because the parties attempted to maximize the advantage of those benefits for one of the parties to a transaction. Respondent should recognize that in instances where there are no shams and depreciable assets exist, some person or entity is entitled to the intended tax advantages. See Estate of Thomas v. Commissioner, 84 T.C. 412, 433-440 (1985). Petitioner, on the other hand, has overreached in arguing that he is entitled to depreciation and investment tax credit based upon the premise that Lorelei owned 100 percent of the photoplay. The depreciation available to Lorelei and Factor, as joint owners, is dependent upon the basis in the asset. Sec. 167(g). Sections 1011 and 1012, read in conjunction with section 167(g), provide that depreciable basis shall be the properties’ cost. Because we have found that Lorelei and Factor have become joint venturers in the production and exploitation of the movie “Overboard,” they are limited to the production costs of $1,487,445 as their basis for purposes of depreciation. The $2,390,000 stated sales price was merely established to cause the annual depreciation to “neutralize” the revenues anticipated from the NBC and Time-Life contracts. Accordingly, the parties will be required to recompute depreciation which will increase the amount of net income realized from the license revenues." }, { "docid": "17724449", "title": "", "text": "have determined that the purchase price paid by petitioners resulted from arm’s-length price negotiations, that the financial structure of the transaction was commercially reasonable, that the participants adhered to the contractual terms, and that the projected income and residual values were not unrealistic. Thus, we conclude that there was a reasonable opportunity for petitioners to earn a pre-tax profit in excess of their actual investment in the computer equipment, and therefore that petitioners’ investment in this transaction was supported by economic substance. We hold that petitioners’ transaction was a genuine multiple-party equipment-leasing transaction motivated by a business purpose and supported by economic substance. Benefits and Burdens of Ownership Respondent argues that even if the transaction had a business purpose and was not devoid of economic substance, a sale of the equipment to petitioners did not occur. The key to deciding whether a transaction constituted a sale for Federal income tax purposes is to determine whether the benefits and burdens of ownership passed to the purported investors. Larsen v. Commissioner, 89 T.C. at 1267; Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981). Whether the benefits and burdens of ownership passed is a question of fact which must be ascertained from the intentions of the parties as evidenced by the written agreements read in light of all of the relevant facts and circumstances. Hulter v. Commissioner, 91 T.C. 371, 388 (1988); Reinberg v. Commissioner, 90 T.C. 116, 132 (1988); Grodt & McKay Realty, Inc. v. Commissioner, supra at 1237; Haggard v. Commissioner, 24 T.C. 1124, 1129 (1955), affd. 241 F.2d 288 (9th Cir. 1956). In previous cases involving the purchase and leaseback of computer equipment, this Court has found that in determining whether investors possess sufficient benefits and burdens of ownership to be regarded as owners of equipment, certain factors generally are considered to be neutral. Those neutral factors are: (1) The use of a net lease; (2) the absence of significant positive net cash-flow during the lease term; and (3) the fact that the rental income stream during the initial lease term is tailored to or matches" }, { "docid": "2457604", "title": "", "text": "petitioners’ transactions * * * are sales is to determine whether the benefits and burdens of ownership have passed * * * to petitioners. This is a question of fact which must be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attending facts and circumstances. Haggard v. Commissioner, 24 T.C. 1124, 1129 (1955), affd. 241 F.2d 288 (9th Cir. 1956). * * * [77 T.C. at 1237.] In Grodt & McKay Realty, Inc. we also enumerated certain factors which are often relevant to determining whether a sale has occurred, such as: (1) Whether legal title passed; (2) whether the parties treated the transaction as a sale; (3) whether the alleged purchaser acquired an equity in the property; (4) whether the contract of sale creates a present obligation on the seller to execute and deliver a deed and a present obligation on the purchaser to make payments; (5) whether the purchaser is vested with the right of possession; (6) whether the purchaser pays property taxes following the transaction; (7) whether the purchaser bears the risk of loss or damage to the property; and (8) whether the purchaser receives the profits from the operation and sale of the property. 77 T.C. at 1237-1238. In the sale leaseback context, we have also considered the following factors as being relevant to determining whether a sale has occurred: (1) The existence of useful life of the property in excess of the leaseback term; (2) the existence of a purchase option at less than fair market value; (3) renewal rental at the end of the leaseback term set at fair market rent; and (4) the reasonable possibility that the purported owner of the property can recoup his investment in the property from the income producing potential and residual value of the property. Estate of Thomas v. Commissioner, 84 T.C. 412, 436, 438 (1985); Mukerji v. Commissioner, 87 T.C. 926 (1986). In analyzing the transaction in this case, we first note that some of the factors enumerated in Grodt & McKay Realty, Inc. v. Commissioner, supra, are" }, { "docid": "10401034", "title": "", "text": "Hart the motion picture negative and all copyrights thereto, excepting all remake, sequel, and television production rights and subject to the rights granted Universal under the production-financing-distribution agreement. Concurrently, under the British Lion distribution agreement, British Lion (EMI) was granted certain rights with respect to the motion picture. Whether Hart became the owner of the motion picture for tax purposes as a result of such transactions is a question of fact to be determined by reference to the written agreements read in light of the attending facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981); Miller v. Commissioner, 68 T.C. at 776; see Fields v. Commissioner, 14 T.C. 1202, 1210-1213 (1950), affd. 189 F.2d 950 (2d Cir. 1951). Ownership of a motion picture negative is distinct from ownership of the copyright thereto (17 U.S.C. sec. 202 (1982) (effective Jan. 1, 1978); Michael Todd Co. v. Los Angeles County, 57 Cal. 2d 684, 371 P.2d 340, 21 Cal. Rptr. 604 (1962), and cases cited therein), and ownership of the former without possession of at least certain of the rights encompassed by the latter is commercially valueless. See Misbourne Pictures Ltd. v. Johnson, 189 F.2d 774, 776 (2d Cir. 1951). Copyrights are monopolies; “they entitle the owner to prohibit various kinds of reproduction, and to relieve individuals of these prohibitions by licenses.” Goldsmith v. Commissioner, 143 F.2d 466, 467 (2d Cir. 1944) (L. Hand, J., concurring), affg. on other grounds 1 T.C. 711 (1943). The exclusive rights that comprise the so-called “bundle of rights” that is a copyright in a motion picture are detailed in 17 U.S.C. sec. 106 (1982): Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case" }, { "docid": "4860544", "title": "", "text": "the irrevocable right to exploit the films, throughout the world, for their entire economic lives, if not in perpetuity. As a result of such agreements, the partnerships conveyed to Paramount all substantial rights in the motion pictures, and retained no interest upon which a deduction for depreciation can be based. Therefore, the amount received by the partnerships as a result of Paramount’s exploitation of the films was a return of basis, and the excess, if any, was ordinary income. The petitioners contend that the partnerships owned the six motion pictures involved in this case. Such ownership arose through the purchase and acquisition agreements and was retained by the partnerships because the distribution agreements reserved certain critical substantial rights for the partnerships. 'Whether the partnerships became the owners of the motion pictures for tax purposes as a result of the transactions involved herein is a question of fact to be determined by reference to the written agreements read in light of the attending facts and circumstances. Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981); Miller v. Commissioner, 68 T.C. 767, 776 (1977); see Fields v. Commissioner, 14 T.C. 1202, 1210-1213 (1950), affd. 189 F.2d 950 (2d Cir. 1951). It is well established that the economic substance of a transaction rather than the form in which it is cast is determinative of its tax consequences. See Golsen v. Commissioner, 54 T.C. 742, 754 (1970), affd. 445 F.2d 985 (10th Cir. 1971), and the cases cited therein. Thus, in a number of cases, courts have refused to permit the transfer of formal legal title to shift the incidence of taxation attributable to ownership of the property where the transferor continues to retain significant control over the property transferred. E.g., Helvering v. Clifford, 309 U.S. 331 (1940); Helvering v. F. & R. Lazarus Co., 308 U.S. 252 (1939); Law v. Commissioner, 86 T.C. 1065 (1986); Hilton v. Commissioner, 74 T.C. 305 (1980), affd. 671 F.2d 316 (9th Cir. 1982); Miller v. Commissioner, supra at 767. “[Tjaxation is not so much concerned with the refinements of title as it is with" }, { "docid": "3002391", "title": "", "text": "look “to the objective economic realities of [the] transaction rather than to the particular form the parties employed” (Frank Lyon v. United States, 435 U.S. 561, 573 (1978)), in order to determine whether a bona fide sale of the films was effectuated. The critical test is whether the benefits and burdens of ownership actually passed from Andrama Films to the partnership, which “is a question of fact which must be ascertained from the intention of the parties as evidenced by the written agreements read in light of the attending facts and circumstances.” Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221, 1237 (1981). See also Leahy v. Commissioner, 87 T.C. 56, 66-67 (1986). A sale of a motion picture will be recognized for purposes of Federal taxation only “when there is a transfer of all substantial rights of value in the motion picture copyright.” Tolwinsky v. Commissioner, 86 T.C. 1009, 1042 (1986). Accordingly, no sale will occur “if the transferor retains proprietary rights in the motion picture.” Tolwinsky v. Commissioner, supra at 1043. See also Durkin v. Commissioner, 87 T.C. 1327 (1986); Cory v. Commissioner, 23 T.C. 775 (1955), affd. 230 F.2d 941 (2d Cir. 1956). By the terms of the purchasing agreement, Andrama Films transferred “all right, title and interest” it held in the films to Andrama I. Respondent asserts, however, that this transfer was illusory because (1) any proceeds realized from the sale or rental of the films by ABC or AJNC were to be sent directly to Andrama Films and did not pass through the partnership, and (2) Gartzman possessed veto power over any change in distributors, was the person who dealt with those distributors and, in so doing, represented the interests of his two corporations and himself and not those of Andrama I. We find respondent’s arguments unconvincing. It was not until 2 years, after the purchase agreement was originally entered into, by letter dated July 14, 1981, that Kuschner instructed ABC to send the royalty payments directly to Andrama Films, and it was even later, by virtue of the supplemental agreement dated November 19," } ]

[ { "docid": "22037357", "title": "", "text": "Huicocheas’ failure to serve a copy of their request on the INS. Despite a subsequent motion to accept an untimely brief, the BIA entered its final order of removability in August of 1999 without accepting De Graafs brief. The Huicocheas contend that the BIA’s failure to consider De Graafs brief violated their Fifth Amendment due process rights. Federal regulations provide that an appellant before the BIA has 30 days to file a brief from the time when the BIA gives notice to do so, unless a shorter period is specified by the Board. See 8 C.F.R. § 3.3(c)(1) (describing the procedure for appealing decisions of an IJ to the BIA). This provision further states: The Board, upon written motion, may extend the period for filing a brief or a reply brief for up to 90 days for good cause shown. In its discretion, the Board may consider a brief that has been filed out of time. All briefs, filings, and motions filed in conjunction with an appeal shall include proof of service on the opposing party. 8 C.F.R. § 3.3(c)(1) (emphasis added). We review the BIA’s decision to deny acceptance of the Huicocheas’ brief for abuse of discretion only. See Balani v. INS, 669 F.2d 1157, 1160 (6th Cir.1982). In this case, we believe that the BIA’s decision, which was based on the fact that they did not serve their initial request on the INS, was within the Board’s discretion and does not violate the Huicocheas’ Fifth Amendment rights. Furthermore, the fact that the BIA’s final order addressed the Huicocheas’ ineffective assistance of counsel argument, despite not accepting their lawyer’s brief on the issue, supports our view. See Luis v. INS, 196 F.3d 36, 41 (1st Cir.1999) (finding no due process violation where the BIA refused to accept a motion to reconsider the appellant’s claims on the merits, but nonetheless addressed the appellant’s claims in its decision). Finally, the BIA’s failure to accept the Huicocheas’ untimely brief, in light of their admission that they are ineligible for cancellation of removal, does not amount to a denial of due process. III." } ]

[ { "docid": "22864746", "title": "", "text": "CYNTHIA HOLCOMB HALL, Circuit Judge: Petitioner Domingo Guevara Caruncho, along with his wife and three sons as additional petitioners (Petitioner), requests review of the Board of Immigration Appeals’ (BIA) summary dismissal of his appeal from a final deportation order. Petitioner argues that his Notice of Appeal form EOIR-26 was sufficiently specific, and that the dismissal procedures used by the BIA did not comport with due process. Petitioner also argues that the BIA abused its discretion by denying his motion to reopen. Additionally, Petitioner’s son, Sir Jason Baylon Carancho, contends that the BIA abused its discretion in denying his separate motion to reopen based on his marriage to a newly-naturalized citizen of the United States. For the reasons set forth below, we conclude that we do not have jurisdiction over Petitioner’s appeal from the BIA’s summary dismissal. Pursuant to 8 U.S.C. § 1105a, we do have jurisdiction over Petitioner’s and Jason Caruncho’s appeals of the BIA’s denials of their motions to reopen. We affirm the denials of the motions to reopen. I. Petitioner is a native and citizen of the Philippines. Nearly seven years ago, in October, 1988, he entered this country on a six-month tourist visa. On May 9, 1989, more than seven months later, the Immigration and Naturalization Service (INS) commenced deportation proceedings against Petitioner by ordering him to show cause why he should not be deported from the United States for overstaying his nonimmigrant visa in violation of 8 U.S.C. § 1251(a)(1)(B). Petitioner admitted his deportability, and applied for asylum pursuant to 8 U.S.C. § 1158, and for withholding of deportation pursuant to 8 U.S.C. § 1253(h). Alternatively, Petitioner requested voluntary departure under 8 U.S.C. § 1254(e). At the deportation hearing on February 23, 1990, the Immigration Judge (IJ) delivered an oral decision denying Petitioner’s application for asylum and withholding of deportation, and granting him voluntary departure by June 1, 1990. On March 2, 1990, Petitioner timely filed a Notice of Appeal from the decision of the IJ with the BIA. Petitioner attached an addendum with his Notice alleging that the IJ abused his discretion in denying his" }, { "docid": "22601886", "title": "", "text": "(May 11, 2005). A Zetino first challenges the BIA’s rejection of his untimely brief and refusal to extend the filing period as an abuse of discretion and a violation of his due process rights. Thus, we are asked to review four challenges: (1) an abuse of discretion challenge to the denial of the motion to accept a late brief; (2) a due process challenge to the denial of the motion to accept a late brief; (3) an abuse of discretion challenge to the denial of the motion to extend the filing period; and (4) a due process challenge to the denial of the motion to extend the filing period. We limit our analysis to Zetino’s challenges to the BIA’s denial of his motion to accept a late brief. We construe Zetino’s motion, filed two weeks after the filing deadline, as solely a motion to accept an untimely brief. An extension of the filing period was factually impossible because the filing period had already lapsed. In its order, the BIA noted its stated policy that a “request for an extension of time to file a brief must be received at the Board on or before [the] ... due date.” A motion to extend the filing period filed after the filing deadline can only result in the acceptance of an untimely brief. Accordingly, we treat Zetino’s “Motion to Accept Late Brief and Motion for Extension of Time” as a motion to accept an untimely brief. i We can see no abuse of discretion in the BIA’s decision. The regulation at issue, 8 C.F.R. § 1003.3(c)(1), states, “In its discretion, the Board may consider a brief that has been filed out of time.” Id. (emphasis added). Thus, if a brief has been filed out of time, the BIA may consider it in its discretion, but it also may not consider it in its discretion. The BIA abuses its discretion when it acts “arbitrarily, irrationally, or contrary to the law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (quoting Eide-Kahayon v. INS, 86 F.3d 147, 149 (9th Cir.1996)); see also Cerezo v. Mukasey," }, { "docid": "22846758", "title": "", "text": "that he had ten days from that date to appeal. In a letter dated March 24, 1978, Mr. Barba advised the immigration judge that he was planning to file an appeal but had been unable to contact his clients “in order to obtain the money needed for the appeal within the required 10 days.” Mr. Barba then requested a 15-day extension “to obtain the money with which to file this meritorious appeal.” On March 27,1978 the immigration judge granted this request by writing “Extension Granted” across the foot of Mr. Barba’s letter. In the brief filed with the Board, Mr. Barba raised the following issues: 1. The immigration judge abused his discretion in denying petitioners’ application for an extended voluntary departure. 2. The deportation of petitioners would be cruel and unusual punishment. 3. The threatened deportation of petitioners will result in the “de facto expulsion” of their citizen children without due process. The Board contended that it was required to dismiss the appeal as not timely filed. As a separate basis for its action the Board stated that it was “without jurisdiction to consider the issues [petitioners] attempt to raise on appeal. It is within the province of the courts, and not the Board, to rule on the constitutionality of the statutes we administer.” The Board also noted that 8 C.F.R. § 3.1(b)(2) specifically prevented it from reviewing alleged errors in the amount of voluntary departure time granted by an immigration judge. Section 242.21 of Title 8 of the Code of Federal Regulations provides in pertinent part that “an appeal shall be taken within 10 days after . . . the stating of an oral decision. . . .” The notice of appeal was not filed by Mr. Barba until March 31, 1978, more than ten days following the oral decision of the immigration judge pronounced on March 16, 1978. However, the notice of appeal was filed within the additional time period granted by the immigration judge. The rules do not expressly authorize an immigration judge to extend the time to file a notice of appeal. Ordinarily the time limit" }, { "docid": "23558070", "title": "", "text": "Pursuant to 8 C.F.R. § 3.2(c)(2), a motion to reopen in any case previously the subject of a final decision by the Board must be filed no later than 90 days after the date of that decision. In the instant case, a motion to reopen would have been due on or before July 10, 2002. The record reflects, however, that the Board did not receive the motion until October 1, 2002. The motion to reopen was therefore filed out of time. In her motion, the respondent requests that the Board consider her “late filed” brief. As the respondent has failed to present adequate reasons to support reopening and consideration of the brief, the motion will be denied. On December 27, 2002, Petitioners filed a petition seeking review of the Board’s December 5th decision. This court has jurisdiction over the petition for review under 8 U.S.C. § 1252(b)(1). II. ANALYSIS A. Scope of this Court’s Review Petitioners seek review of three decisions: (1) the Immigration Judge’s May 3, 2001 decision denying asylum, (2) the Board’s April 11, 2002 decision denying Petitioners’ appeal from the Immigration Judge’s decision, and (3) the Board’s December 5, 2002 decision denying Petitioners’ motion to reopen the case. This court has jurisdiction to consider only the third decision, the Board’s December 5, 2002 decision declining to reopen the case. First, we do not review the Immigration Judge’s decision. There is “widespread consensus” that, in 8 U.S.C. § 1252(a)(1), Congress has granted the courts power to review only “final order[s]” of removal. Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001) (quoting the statute). “Because an alien facing removal may appeal to the BIA as of right, and because the BIA has the power to conduct a de novo review of [Immigration Judge] decisions, there is no ‘final order’ until the BIA acts.” Id. at 548-49 (citing Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.1991)). Second, we do not review the Board’s April 11, 2002 denial of Petitioners’ appeal. The statute providing for judicial review, 8 U.S.C. § 1252(b)(1), states that “[t]he petition for review must be" }, { "docid": "22607377", "title": "", "text": "and would not be identified as having done so, concluded that the evidence presented was not relevant, and that he failed to establish a prima facie case for asylum. These decisions of the Board did not constitute an abuse of discretion and were supported by. substantial evidence. PETITION DENIED. . The documents presented in September 1997 included an Amnesty International Report on Iran, unauthenticated translations of documents written in Farsi, and a letter from the pastor of a Christian church serving, inter alia, Persian immigrants. . In order to obtain withholding of deportation on the basis of future persecution, an applicant must demonstrate a clear probability of persecution. INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). In contrast, an applicant seeking asylum as a refugee, need only show a well-founded fear of persecution, a lesser standard. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). . Although the Board prefaced the dismissal with a statement that it had reviewed the record and was not persuaded that the IJ’s ultimate resolution was in error, we have held such dismissals to be procedural and not on the merits. See, e.g., Garcia-Cortez v. Ashcroft, 366 F.3d 749, 752 (9th Cir.2004). We have also held that summary dismissal for failure to timely file a brief is improper if the notice of appeal is sufficiently specific to focus the Board's attention on the specific findings of fact and conclusions of law that the alien contends were erroneous. Id. at 753. Here, Toufighi included an “attachment sheet” with his notice of appeal setting out his claims of error. However, Toufighi did not seek timely review of the dismissal of his appeal, and we do not review it here. . The Board’s Order, dated May 21, 2002, established a new departure date thirty days thereafter and restarted the ten-year period of ineligibility. Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1173-74 (9th Cir.2003). . The changed conditions to which Toufighi referred did not address religion in general, or Christian-Muslim relations in particular, but sought to show that" }, { "docid": "11310437", "title": "", "text": "the IJ concluded that because the only fear articulated by Petitioner was that of legitimate prosecution for refusing to serve in the Nicaraguan military, the evidence did not demonstrate a well-founded fear of persecution. On May 9,1990, Petitioner’s counsel timely filed a Notice of Appeal (Form EOIR-26) with the BIA, listing the reasons for the appeal as follows: (a) Denial of political asylum not supported by substantial evidence. (b) Applicant met burden of proof, showed a well-founded fear of persecution. (e) Court created nonexistent conflicts in the evidence. (d) Court drew incorrect/unreasonable conclusions from the testimony. (e) Other errors of law and fact were made which will be fully cited and briefed upon receipt of transcript of hearing. Petitioner also checked a box on the form indicating that he would file a separate written brief or statement, but no brief was ever submitted. On June 30, 1994, the BIA summarily dismissed Petitioner’s appeal pursuant to 8 C.F.R. § S.RdXl-aXiXA), reasoning that his Notice of Appeal was “insufficient to apprise the Board of which aspects of the immigration judge’s decision [were] considered incorrect and for what reason,” and that Petitioner had failed to file a brief on appeal despite his indication that he would do so. On September 8, 1994, Petitioner filed a motion to reopen deportation proceedings, which he later withdrew. He also sought a stay of deportation, but the BIA denied his request on September 12, 1994. Castillo-Manzanarez then timely petitioned for review of the BIA’s summary dismissal of his appeal, arguing (1) that his Notice of Appeal was sufficiently specific and (2) that, in any event, the BIA’s summary dismissal procedures violated his due process rights. We consider each argument in turn. II Although we have recognized that other circuits have employed an abuse of discretion standard in reviewing the BIA’s decision to summarily dismiss an appeal for lack of specificity, see Padilla-Agustin v. I.N.S., 21 F.3d 970, 973 (9th Cir.1994) (citing Townsend v. I.N.S., 799 F.2d 179, 182 (5th Cir.1986) (per curiam)), this court has never clearly articulated the proper standard of review, choosing instead to “analyze[" }, { "docid": "22601887", "title": "", "text": "“request for an extension of time to file a brief must be received at the Board on or before [the] ... due date.” A motion to extend the filing period filed after the filing deadline can only result in the acceptance of an untimely brief. Accordingly, we treat Zetino’s “Motion to Accept Late Brief and Motion for Extension of Time” as a motion to accept an untimely brief. i We can see no abuse of discretion in the BIA’s decision. The regulation at issue, 8 C.F.R. § 1003.3(c)(1), states, “In its discretion, the Board may consider a brief that has been filed out of time.” Id. (emphasis added). Thus, if a brief has been filed out of time, the BIA may consider it in its discretion, but it also may not consider it in its discretion. The BIA abuses its discretion when it acts “arbitrarily, irrationally, or contrary to the law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (quoting Eide-Kahayon v. INS, 86 F.3d 147, 149 (9th Cir.1996)); see also Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008) (“The BIA abuses its discretion when it makes an error of law.”). We have held that “[t]he BIA abuses its discretion when it fails to comply with its own regulations.” Iturribarr ia v. INS, 321 F.3d 889, 895 (9th Cir.2003). Zetino filed his brief out of time. The applicable regulation indicates that the BIA could have considered his brief in its discretion. See 8 C.F.R. § 1003.3(c)(1). The BIA was under no obligation to do so, however, and the BIA certainly did not act arbitrarily, irrationally, or contrary to the law, Singh, 213 F.3d at 1052, by exercising its discretion to deny an untimely brief under a regulation indicating that it could — or could not — accept the brief, 8 C.F.R. § 1003.3(c)(1). On this record, there was no abuse of discretion. ii We can see no due process violation in the BIA’s decision. “The Fifth Amendment guarantees due process in deportation proceedings.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). An alien “must receive a ‘full" }, { "docid": "22942074", "title": "", "text": "WALLACE, Chief Judge: Limsico appeals from a decision by the Board of Immigration Appeals (Board) denying him relief from deportation. He argues that the Board’s denial of asylum eligibility is not supported by substantial evidence. He also asserts that the Board abused its discretion in denying his motion to reopen. Indeed, he contends that the Board erred in deciding his motion to reopen before the Immigration and Naturalization Service (INS) stated its position on the motion. He further argues that the Board's refusal to suspend deportation violates the intent of Congress to keep families together. Finally, he alleges that the Board’s rulings violated his right to due process. The Board had jurisdiction pursuant to 8 C.F.R. §§ 3.1(b)(2) and 3.2 (1991). We have jurisdiction over this timely petition pursuant to 8 U.S.C. § 1105a(a). We deny the petition to review and affirm the Board. I Limsico is a twenty-nine-year-old native and citizen of the Republic of the Philippines. He entered the United States in December 1981, and was authorized to remain as a visitor until April 30, 1982. On February 8, 1982, he married Shannon Marie Van Slyke, a United States citizen, in Las Vegas, Nevada. Van Slyke petitioned for an immediate relative visa petition. On June 22, 1982, the INS denied her petition because she had failed to establish that her marriage to Limsico was bona fide. The INS began deportation proceedings against him under 8 U.S.C. § 1251(a)(1)(A) (formerly § 1251(a)(2)), as an alien who remained in the United States longer than permitted. Limsico conceded deportability and applied for asylum and withholding of deportation, asserting a fear of persecution. After a hearing on May 23, 1986, an immigration judge (IJ) denied his application and request for voluntary departure. Limsico appealed this decision to the Board, and on July 11, 1989, filed a motion to reopen and an application for suspension of deportation. The Board affirmed the IJ’s denial of asylum, withholding deportation, and voluntary departure. The Board also denied Limsico's motion to reopen. II Limsico contends that the Board erred by denying his application for asylum eligibility. We" }, { "docid": "22361698", "title": "", "text": "and that petitioner’s case did not merit a discretionary waiver of deportation under section 212(c). That same day, petitioner’s former counsel filed a notice of appeal (Form I-290A) with the Board of Immigration Appeals, stating as reasons for the appeal that “[t]he Judge abused his discretion in that; (a) His decision was against the weight of the evidence presented[;] (b) His decision was against the law controlling this case[; and] (c) His decision was arbitrary and capricious.” In the notice, petitioner’s counsel stated that he intended to file a separate written brief. In May 1986, the immigration court clerk informed petitioner’s counsel by letter that a written brief already should have been filed, and suggested that any brief should promptly be submitted directly to the Board. No brief was filed. In a decision dated July 8, 1986, the Board summarily dismissed the appeal pursuant to 8 C.F.R. § 3.1(d)(l-a)(i). That regulation provides: The Board may summarily dismiss any appeal in any case in which (i) the party concerned fails to specify the reasons for his appeal on Form 1-290A (Notice of Appeal); ... The Board noted that petitioner had “in no meaningful manner identified the claimed error in the immigration judge’s comprehensive ... decision_” The Board, ac cordingly, affirmed the decision of the immigration judge “for the reasons stated therein.” Petitioner filed the present petition for review in September 1986. He claimed that the Board erred in giving his claim only summary attention, and alternatively argued that he was denied due process on the basis of ineffective assistance of his former counsel, who inadequately had completed Form I-290A and who never filed a written brief in support of petitioner’s appeal to the Board of Immigration Appeals. In January 1987, while the federal court case was pending, petitioner filed a motion to reopen proceedings before the Board. Although we heard oral argument in April 1987, we entered an order holding the case in abeyance pending the Board’s resolution of the motion to reopen proceedings. The Board denied the motion on April 13, 1988. We now turn to the merits of the" }, { "docid": "22116011", "title": "", "text": "Board was available at his former hearing. But for the mistake of counsel, these documents would have been considered (although, as discussed below, such consideration would not have changed the outcome of Alabani’s case). Aso, the Board gave this rational explanation: [W]e have reviewed the record, and note that the Board and the Immigration Judge concluded that the respondent was not the victim of past persecution in Yemen. Nothing in the instant motion alters our conclusion on that point. We further are unable to find that if the proceedings were reopened, the respondent would likely establish eligibility for asylum and withholding of removal based upon the evidence submitted with the motion.... We therefore see no need to reopen these proceedings. Because the material was available and the Board provided a reasoned explanation, we conclude that the Board did not abuse its discretion in denying the motion. b. Ineffective Assistance of Counsel In his motion to reopen, Allabani also claimed that his former counsel, Richard Kulics, was ineffective on several grounds. He argues that Kulics (1) failed to submit documentation at the deportation hearing in support of the asylum and \"withholding applications; (2) failed to object during Allabani’s deportation hearing to the allegedly inaccurate translation; (3) failed to raise material legal issues in his notice of appeal or to file an appeal brief; and (4) failed to file a motion to reopen Allabani’s deportation proceedings to apply for protection under the Convention Against Torture. Fifth Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them to a full and fair hearing. See Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001). To constitute fundamental unfairness, however, a defect in the removal proceedings “must have been such as might have led to denial of justice.” Id. (quoting Ramirez v. INS, 550 F.2d 560, 563 (9th Cir.1977)). The alien carries the burden of establishing that ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order to prove that he has suffered a denial of due process. Huicochea-Gomez, 237 F.3d at 699. Generally, we review the Board’s denial" }, { "docid": "22607361", "title": "", "text": "to learn and become a Christian. The Court just would not believe that the respondent’s claimed conversion is genuine in nature. The Court would find that the respondent’s alleged conversion from Muslim to Christianity is basically as a vehicle for him to apply for political asylum in the United States. The IJ further found that Toufighi had not previously practiced Christianity in Iran, and implicitly found that he would not practice it there in the future because his alleged apostasy was simply a ruse to gain asylum. Based on these findings, the IJ concluded that Toufighi had not established past persecution, or a well-founded fear of persecution upon his return to Iran. The IJ therefore denied Toufi-ghi’s claim for asylum, and because the standard was higher, also denied the request for withholding of removal. The IJ then granted Toufighi’s alternate request for voluntary departure, giving him until May 31,1998, to depart. Toufighi challenged the IJ’s decision, filing a timely notice of appeal with the Board. However, he failed to timely file a brief in support of his appeal, and the Board accordingly dismissed it in May 2002, pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(D) (2002)). The Board’s dismissal permitted Toufighi to voluntarily depart within thirty days, and warned him that if he failed to timely depart he would be removed, subjected to a fine, and made ineligible for a period of ten years for any further relief under certain sections of the Immigration and Nationality Act. Toufighi did not depart as promised. On October 16, 2003, he filed a motion to reopen his case to adjust his status to that of a lawful permanent resident based upon his recent marriage to a United States citizen. Alternatively, he asserted that changed conditions in Iran warranted reopening his asylum claim. The Board denied the motion on July 15, 2004. First, the Board found that as a consequence of Toufighi’s failure to voluntarily depart pursuant to the Board’s grant of voluntary departure dated May 21, 2002, Toufighi was barred from applying for adjustment of status for ten years in" }, { "docid": "22942077", "title": "", "text": "speculative. He also admitted that many people, not just those of Chinese ancestry, had been harmed. General conditions of unrest do not establish a well-founded fear of persecution. We hold that substantial evidence supports the Board’s conclusion that Limsico failed to demonstrate a well-founded fear of persecution. III Limsico contends that because the INS filed no opposition to his motion to reopen, the Board erred by denying it. Limsico points to no case requiring the Board to await the filing of an opposition by the INS prior to rendering a decision. Instead, he relies on 8 C.F.R. § 3.8, which outlines filing procedures for a motion when the alien is the moving party. Section 3.8(b) does not mention opposition briefs. Section 3.8(c), on the other hand, sets out filing procedures for a motion when the INS is the moving party. It specifically requires the alien to file an opposition brief within ten days of the INS motion. Absent an express statutory or regulatory requirement, we conclude that Congress did not intend to require the INS to file an opposition brief when the alien is the moving party. Therefore, the Board did not err in deciding the motion to reopen without an opposition from the INS. IV Limsico next argues that the Board abused its discretion in denying his motion to reopen on the merits. The Board denied the motion because it found that Limsico failed to establish the requisite prima facie case of statutory eligibility for suspension of deportation. See 8 U.S.C. § 1254(a)(1). We review such Board findings for abuse of discretion. Zacarias v. INS, 921 F.2d 844, 854 (9th Cir.1990) (Zacarias), cert. granted, — U.S. —, 111 S.Ct. 2008, 114 L.Ed.2d 96 (1991); Kaveh-Haghigy v. INS, 783 F.2d 1321, 1322 (9th Cir.1986). In order to make out a prima facie case, Limsico must allege and support by affidavit or other evidentiary material that (1) he has been physically present in the United States for a period of at least seven years; (2) during all such period he was and is of good moral character; and (3) the deportation" }, { "docid": "22846757", "title": "", "text": "ALARCON, Circuit Judge: Petitioners seek review of an order of the Board of Immigration Appeals (hereinafter referred to as the “Board”) dismissing their appeal of an Immigration Judge’s order denying their request for 15 months voluntary departure time. The Board dismissed the appeal on two separate grounds: (1) The appeal was not timely filed; (2) The Board has no jurisdiction under 8 C.F.R. § 3.1(b)(2) (1979) to review the denial of a greater period of voluntary departure time than that fixed by the immigration judge. For the reasons discussed below, we have concluded that under these facts the appeal to the Board must be deemed to have been timely filed, but the appeal was properly dismissed under 8 C.F.R. § 3.1(b)(2). We find that the remaining issues raised by petitioners are without merit, and accordingly dismiss their petition. TIMELINESS OF THE APPEAL TO THE BOARD OF IMMIGRATION APPEALS The deportation hearings were held on March 16, 1978. At the close of the proceedings the immigration judge orally notified Francisco J. Barba, counsel for the petitioners, that he had ten days from that date to appeal. In a letter dated March 24, 1978, Mr. Barba advised the immigration judge that he was planning to file an appeal but had been unable to contact his clients “in order to obtain the money needed for the appeal within the required 10 days.” Mr. Barba then requested a 15-day extension “to obtain the money with which to file this meritorious appeal.” On March 27,1978 the immigration judge granted this request by writing “Extension Granted” across the foot of Mr. Barba’s letter. In the brief filed with the Board, Mr. Barba raised the following issues: 1. The immigration judge abused his discretion in denying petitioners’ application for an extended voluntary departure. 2. The deportation of petitioners would be cruel and unusual punishment. 3. The threatened deportation of petitioners will result in the “de facto expulsion” of their citizen children without due process. The Board contended that it was required to dismiss the appeal as not timely filed. As a separate basis for its action the" }, { "docid": "22352420", "title": "", "text": "seek judicial review and to prepare therefore.” Id. at 2973. We, therefore, conclude that because this petition for review was filed almost nine months after the original deportation order of October 11,1984, we have no jurisdiction to review that order. III. Motion to Reconsider Although Congress did not provide a statutory mechanism for reconsideration of BIA decisions, the Attorney General has promulgated regulations under the Immigration and Nationality Act for such procedures. Specifically, 8 C.F.R. § 3.2 (1985) and 8 C.F.R. § 3.8 (1985) outline the appropriate procedures. Under both of these regulations, motions to reconsider must state the reasons for reconsideration and are to be supported by pertinent case precedent. In their motion, the petitioners failed to comply with these requirements. The petitioners not only offered conclusory statements as their reasons for reconsideration but also failed to support their reasons with appropriate case law. Because the petitioners were not in compliance with the prescribed regulations, the Board was justified in denying the motion on this ground and cannot be said to have abused its discretion. Cf. Reid v. INS, 756 F.2d 7, 10 (3d Cir.1985). As well, the Board denied the motion on the ground that neither the Board nor the Immigration Judge has authority to grant extended voluntary departure. Voluntary departure under 8 U.S.C. § 1254(e) allows the alien to avoid the stigma of deportation and to select his own destination, and also facilitates the possibility of his return to the United States. Strantzal-is v. INS, 465 F.2d 1016, 1017 (3d Cir.1972). Originally, the petitioners were granted thirty days voluntary departure by both the Immigration Judge and the Board upon appeal from the denial of asylum and the withholding of deportation. With respect to the extension of time within which an alien may depart voluntarily, 8 C.F.R. § 244.2 (1985) provides that the authority to extend such time is within the “sole discretion of the district director.” According to this regulation, “A request by an alien for an extension of time within which to depart voluntarily shall be filed with the district director having jurisdiction over the alien’s" }, { "docid": "12864104", "title": "", "text": "did he claim to be involved in any political activities. In a written opinion issued on April 20, 1984, the immigration judge ruled that petitioner was deportable under § 241(a) of the Act. The judge further held that the petitioner did not qualify for withholding of deportation under § 243(h) of the Act or for asylum under § 208. In reaching this conclusion, the judge discounted the petitioner’s testimony regarding the alleged beating due to inconsistencies in the testimony with respect to the date of the incident and the identity of the assailants. The judge also noted that the alleged beating was the sole evidence of persecution against the -petitioner and that the general information about human rights conditions in Iraq did not show that petitioner would be singled out for persecution if he returned to Iraq. Although the judge denied the request for asylum or withholding of deportation, the petitioner was granted permission to voluntarily depart within thirty days in lieu of immediate deportation. On May 2, 1984, petitioner perfected an appeal to the Board of Immigration Appeals. In a written opinion, dated January 13, 1986, the Board dismissed the appeal and upheld the decision of the immigration judge finding the petitioner deportable and denying his application for asylum and withholding of deportation. The Board also granted petitioner’s request for voluntary departure within thirty days. II. Petitioner filed a timely petition for review with this court on February 12, 1986, pursuant to § 106 of the Act, 8 U.S.C. § 1105a, which grants jurisdiction to this court to review the final orders of deportation. 8 U.S.C. § 1105a(4) provides in part: The petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General’s finding of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole shall be conclusive. Thus, our scope of review on appeal is limited to determining whether the Board has abused its discretion in denying petitioner’s requests for withholding of deportation or asylum. On appeal, petitioner contends that the Board erred" }, { "docid": "5703519", "title": "", "text": "petitioners claim that 8 C.F.R. § 244.1 which limits Iranian nationals to fifteen days’ voluntary departure time is a denial of due process of law and a violation of equal protection of the laws. Regulations concerning alienage must be sustained if they are not wholly irrational. Narenji v. Civiletti, 617 F.2d 745 (D.C.Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). This regulation passes the rational basis test. Considering the grave international crisis faced by the United States at that time, a response to limit the voluntary departure time for Iranian nationals determined to be deportable was justified and rational. Malek-Marzban v. Immigration and Naturalization Service, 653 F.2d 113 (4th Cir. 1981). The petitioners also contend that Afsaneh Sadegh-Nobari was denied her due process rights to prepare an adequate appeal. Her appeal to the Board of Immigration Appeals was filed on September 30, 1980. The transcript was requested at that time in order that a brief could be submitted pursuant to 8 C.F.R. § 3.3(c). Although the transcript was mailed on October 1, 1981 it did not reach the petitioner’s attorney until after October 9, 1981 when the Board denied her appeal. •Petitioner’s due process rights have not been violated. The regulations provide that the briefs may be filed “within the time fixed for appeal or within any other additional period designated by the special inquiry officer.” 8 C.F.R. § 3.3(c). The time fixed for appeal is fifteen days after the service of notification of decision. 8 C.F.R. § 103.3(a). Under the regulations petitioner’s brief should have been filed at the time of perfecting the appeal or by September 24,1981. 8 C.F.R. § 103.3(a). The petitioner never requested an extension of time to file a brief. Since the application for notice of appeal clearly sets out the time requirements the petitioner had sufficient notice. These administrative procedures are clear and reasonable. The petitioner’s due process rights were not violated. We must conclude that the decisions of the Board of Immigration Appeals in both cases must be upheld and it is so ordered." }, { "docid": "5261981", "title": "", "text": "WIGGINS, Circuit Judge: Gert Helmut Dielmann (“Petitioner” or “Dielmann”) petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of his motion to reopen his deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1105a and deny the petition for review. FACTS AND PRIOR PROCEEDINGS Dielmann, a citizen of Germany, entered the United States on a tourist visa on January 12, 1989. He overstayed his visa, and deportation proceedings were initiated on May 24, 1990. The immigration judge found Dielmann deportable and denied his request for voluntary departure. See 8 U.S.C. § 1254(e). Dielmann appealed the denial of voluntary departure, but the appeal was dismissed on December 18, 1991 because he failed to file a brief in support of the appeal. In the meantime, Dielmann had married a United States citizen. On April 29, 1992, Dielmann moved to have the deportation proceedings reopened on the basis of his application for adjustment of status to that of a lawful permanent resident because of his marriage and his wife’s petition for an immediate relative visa, which were filed at the same time. The BIA denied Petitioner’s motion to reopen. The Board ruled that the unadjudicat-ed visa petition did not establish that he was entitled to the relief he sought because his status may only be adjusted if he establishes by “clear and convincing evidence” that the marriage was entered into in good faith and not for the purpose of gaining entry to the United States. 8 U.S.C. § 1255(e)(3). Petitioner now appeals the BIA’s ruling. DISCUSSION Petitioner argues that the BIA erred by failing to defer its consideration of the motion to reopen until after the relative visa petition was adjudicated. Denial of a motion to reopen deportation proceedings on the grounds that the moving party has failed to establish a prima facie case for the relief sought is reviewed for an abuse of discretion. INS v. Doherty, 502 U.S. 314,-, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992). Petitioner relies on In re Garcia, 16 I & N Dec. 653 (BIA 1978), which held that deportation proceedings" }, { "docid": "23558067", "title": "", "text": "OPINION MAYS, District Judge. Petitioners seek review of an Immigration Judge’s decision denying their request for asylum, the Board of Immigration Appeals’ (“Board”) decision on April 11, 2002 affirming that decision on a procedural ground, and the Board’s December 5, 2002 denial of their untimely motion to reopen. This court has jurisdiction only over the December 5, 2002 decision. Because the Board did not abuse its discretion by denying an untimely motion to reopen, we DENY the petition for review. I. BACKGROUND Petitioners Vilton, Age, and Leoret Pre-kaj, a husband and wife and their minor daughter, are natives of the former Republic of Yugoslavia. Vilton Prekaj entered the United States on December 20,1993 as a non-immigrant visitor for pleasure. His temporary visa expired on June 19, 1994. Age and Leoret Prekaj entered the United States without valid entry documents on August 8, 1995. On October 31, 1997, the Immigration and Naturalization Service (“INS”) served Vilton and Age Prekaj with Notices to Appear, charging them with removal under the Immigration and Nationality Act. Petitioners sought asylum. After conducting hearings that concluded on April 10, 2000, Immigration Judge Miriam K. Mills issued a decision denying Petitioners relief on May 3, 2001. Petitioners filed an appeal with the Board on May 17, 2001. The Notice of Appeal form included a place for Petitioners to indicate whether they would “file a separate written brief or statement in addition to the ‘Reason(s) for Appeal’ written above or accompanying this form.” The form also included the statement: “WARNING: Your appeal may be summarily dismissed if you indicate in item # 6 that you will file a separate written brief or statement and, within the time set for filing, you fail to file the brief or statement and do not reasonably explain such failure.” The Notice of Appeal was signed by Petitioners’ counsel, David Paruch. It stated, as reasons for appeal, the same reasons raised in the present petition. Although Petitioners checked the box indicating that they would file a separate brief, they failed to do so. On April 11, 2002, the Board summarily dismissed the appeal" }, { "docid": "22176255", "title": "", "text": "and voluntary departure. The immigration judge also denied Mendez-Gutierrez’s request to reinstate the asylum application that he had previously withdrawn. Mendez-Gutierrez appealed to the Board, arguing that the immigration judge abused her discretion in denying his request to reinstate the withdrawn asylum application. The Board dismissed the appeal, holding that, although the failure to consider the asylum application may have been error, it did not “materially affect the outcome of the case.” According to the Board, Mendez-Gutierrez had not established prima facie eligibility for asylum because he had failed to demonstrate past persecution. Mendez-Gutierrez then petitioned this court for review. In a published opinion, we granted the petition for review. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir.2003). We first concluded that the Board did not abuse its discretion by requiring Mendez-Gutierrez to show prima facie eligibility for asylum before reopening his application, id. at 869-70, and upheld the Board’s determination that Mendez-Gutierrez had not established past persecution. “We cannot conclude that the unspecified threats against Mendez-Gutierrez were sufficiently menacing to constitute past persecution, as we do not even know what the threats entailed. Nor do the occasional incidents of detention and interrogation rise to the level of past persecution.” Id. at 869 n. 6 (citation omitted). However, we held that the Board did abuse its discretion in not considering whether Mendez-Gutierrez had demonstrated a well-founded fear of future persecution, and we remanded so that the Board could consider it in the first instance. Id. at 869-70. We stated that “it appears doubtful that Mendez-Gutierrez will be able to establish a well-founded fear of future persecution” due to current country conditions in Mexico. Id. at 870. We referred to the 2000 election of PAN candidate Vicente Fox Quesada as president of Mexico. Fox has since remained in power. See id. Mendez-Gutierrez does not argue that he would be in danger were the PRI to return to power. On remand, Mendez-Gutierrez filed a three-page brief. He supplied no affidavits or additional evidence regarding his asylum application. He also argued for the first time that the Notice to Appear was defective because" }, { "docid": "23558069", "title": "", "text": "because of that failure, citing 8 C.F.R. § 3.1(d)(2)(i)(D), which authorizes summary dismissal if the appellant indicates on the notice of appeal form “that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing.” The Board also stated, “[U]pon review of the record, we are not persuaded that the Immigration Judge’s ultimate resolution of this case was in error.” On October 1, 2002, Petitioners filed a motion to reopen their removal proceeding with the Board. The motion stated that Petitioners “sought assistance of counsel and counsel was unable to complete the briefing on time.” On December 5, 2002, the Board denied the motion to reopen on the basis that it was untimely. Its order stated: PER CURIAM. The motion to reopen has been filed out of time and will be denied. The final order in these proceedings was entered by the Board on April 11, 2002. Pursuant to 8 C.F.R. § 3.2(c)(2), a motion to reopen in any case previously the subject of a final decision by the Board must be filed no later than 90 days after the date of that decision. In the instant case, a motion to reopen would have been due on or before July 10, 2002. The record reflects, however, that the Board did not receive the motion until October 1, 2002. The motion to reopen was therefore filed out of time. In her motion, the respondent requests that the Board consider her “late filed” brief. As the respondent has failed to present adequate reasons to support reopening and consideration of the brief, the motion will be denied. On December 27, 2002, Petitioners filed a petition seeking review of the Board’s December 5th decision. This court has jurisdiction over the petition for review under 8 U.S.C. § 1252(b)(1). II. ANALYSIS A. Scope of this Court’s Review Petitioners seek review of three decisions: (1) the Immigration Judge’s May 3, 2001 decision denying asylum, (2) the Board’s April" } ]

[ { "docid": "22213383", "title": "", "text": "42 U.S.C. § 1983. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Moran v. Sondalle, 218 F.3d 647 (7th Cir.2000). But only the change in credit-earning class may be challenged under § 2254. Disciplinary segregation affects the severity rather than duration of custo dy. More-restrictive custody must be challenged under § 1983, in the uncommon circumstances when it can be challenged at all. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Montgomery cannot use § 1983 to contest his segregation, for three reasons. First, the decision of a prison disciplinary board may not lead to an award of damages if it is open to contest under § 2254 yet remains in force. That’s the holding of Edwards, an application of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Cf. DeWalt v. Carter, 224 F.3d 607 (7th Cir.2000). Montgomery can achieve review of the board’s decision by concentrating on his credit-earning class, so Edwards blocks use of § 1983 unless Montgomery prevails in the § 2254 proceedings. Second, Montgomery has been barred from filing any § 1983 litigation as a result of his failure to pay sanctions imposed for his history of vexatious civil litigation. See Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.1995). The preclusion order has an exception for proceedings under § 2254 but forecloses other civil actions until the sanctions have been paid. Third, as Sandin holds, a prisoner has neither a “liberty” nor a “property” interest in remaining in a prison’s general population, so Montgomery has nothing substantive to complain about. Only the reduction in credit-earning class requires further consideration. Although § 2254 provides the right vehicle, the question remains whether a reduction in credit-earning class deprives a prisoner of “liberty” or “property” — for if not then the state is free to use any procedures it chooses, or no" } ]

[ { "docid": "17516614", "title": "", "text": "he contends that his custody should take one form (the prison’s general population) rather than another (segregation). Section 2254 is the appropriate remedy only when the prisoner attacks the fact or duration of “custody.” Although dramatically more restrictive confinement may be contested in a collateral attack under § 2254, see Graham v. Broglin, 922 F.2d 379 (7th Cir.1991), recent cases such as Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), imply that the difference between a prison’s general population and segregation does not implicate a “liberty” interest—and therefore could not-be “custody” for purposes of § 2254. See also Wagner v. Hanks, 128 F.3d 1173 (7th Cir.1997). The difference between § 1983 and § 2254 is potentially important for procedural issues, such as the need for a certificate of appeala-bility and the application of the Prison Litigation Reform Act. See Newlin v. Helman, 123 F.3d 429, 437-38 (7th Cir.1997); Moore v. Pemberton, 110 F.3d 22 (7th Cir.1997). Perhaps Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir.1997), which extends Edwards v. Balisok, — U.S.-, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), and Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), to foreclose the use of § 1983 actions to review placement in segregation means that prisoners are effectively compelled to use § 2254—though Stone-Bey did not attempt to reconcile its holding with Sandin and the fact that few states afford collateral review of prison disciplinary decisions. Cf. Spencer v. Kemna, — U.S. -,-- -,-n. 8, 118 S.Ct. 978, 988-90, 992 n. 8, 140 L.Ed.2d 43 (1998) (Souter, J., concurring, Ginsburg, J., concurring, and Stevens, J., dissenting, forming a majority that would treat Heck as inapplicable when collateral review is impossible). At all events, because Sylvester styled this as a collateral attack under § 2254 and has not argued that the concomitant restrictions under the Antiterrorism and Effective Death Penalty Act do not apply, and the state has not argued for application of the PLRA, we do not pursue the matter. Nor do we explore the possibility that, even if this is properly" }, { "docid": "22188739", "title": "", "text": "the involuntary administration of psychotropic drugs as a protected liberty interest). Rather than invoking a single standard for determining whether a prison hardship is atypical and significant, we rely on a “condition or combination of conditions or factors [that] requires case by case, fact by fact consideration.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.1996). Specifically, we look to three guideposts by which to frame the inquiry: (1) whether the challenged condition “mirrored those conditions imposed upon inmates in administrative segregation and protective custody,” and thus comported with the prison’s discretionary authority; (2) the duration of the condition, and the degree of restraint imposed; and (3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. Sandin, 515 U.S. at 486-487, 115 S.Ct. 2293; Keenan, 83 F.3d at 1089. Typically, administrative segregation in and of itself does not implicate a protected liberty interest. See, e.g., Sandin, 515 U.S. at 486, 115 S.Ct. 2293 (“[Disciplinary segregation, with insignificant exceptions, mirror[s] those conditions imposed upon inmates in administrative segregation and protective custody.”); Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.2000) (holding that the pre-sentencing prisoner had no liberty interest in being free from administrative segregation); accord Wagner v. Hanks, 128 F.3d 1173, 1174 (7th Cir.1997) (“But it would be difficult (we do not say impossible) to make disciplinary segregation sufficiently more restrictive than the conditions of the general population ... to count as an atypical and significant deprivation of liberty[.]”); Freitas v. Ault, 109 F.3d 1335, 1337 (8th Cir.1997) (“We believe that as a matter of law these conditions of [standard administrative segregation] do not constitute an ‘atypical and significant’ hardship, ... when compared to the burdens of ordinary prison life.”) (internal citation omitted). Serrano wallowed in a non-handicapped-accessible SHU for nearly two months — 25 days of which immediately followed Francis’ sentencing Serrano to a year-long term in the SHU. During his time in the facility, Serrano was denied use of his wheelchair, which he was permitted to use in the general population. Serrano has alleged that he could not take a proper shower; that he" }, { "docid": "15396791", "title": "", "text": "free from administrative segregation.” Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995). This argument draws support from Sandin’s requirement of conditions of atypical and significant hardship, coupled with its recalling that in Hewitt the Court had “concluded that the transfer to less amenable quarters for nonpunitive reasons was ‘ordinarily contemplated by a prison sentence.’ ” Sandin, 515 U.S. at 480, 115 S.Ct. 2293 (quoting Hewitt, 459 U.S. at 468, 103 S.Ct. 864). Moreover, in Sandin, the prisoner’s confinement was not deemed atypical, in part, because his “disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody.” Id. at 486, 115 S.Ct. 2293 (footnote omitted); see id. at 489 n. 1, 115 S.Ct. 2293 (Ginsburg, J., with whom Stevens, J., joins, dissenting) (“The Court reasons that Conner’s disciplinary confinement, ‘... mirrored ... administrative segregation ...,’ and therefore implicated no constitutional liberty interest.”) (emphasis added and citation omitted) (quoting majority opinion at 486, 115 S.Ct. 2293). The Seventh Circuit has interpreted Sandin to mean that “the key comparison [to determine atypical and significant hardship] is between disciplinary segregation and nondisciplinary segregation,” Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir.1997), thereby implying that confinement for administrative reasons can never implicate a liberty interest. We think Sandin does not go so far. The Court might have assumed that administrative confinement sometimes will not implicate a liberty interest because it might be imposed without the requirement that corrections officers find a substantive factual predicate. Thus, in one passage, the Court compared the conditions of Conner’s disciplinary confinement to “similar, but totally discretionary, confinement.” Sandin, 515 U.S. at 486, 115 S.Ct. 2298 (emphasis added). But, as we have long recognized, New York has established substantive factual predicates for many instances of administrative confinement. See N.Y. Comp.Codes R. & Regs. tit. 7, § 301.1-.7 (1999); Arce v. Walker, 139 F.3d 329, 334 (2d Cir.1998) (applying San-din ’s two-part inquiry, concerning state-created liberty interest and atypical restricted confinement, to prisoner held in administrative segregation); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir.1997) (“[W]e have never held that New" }, { "docid": "1302236", "title": "", "text": "the conditions rather than the fact of his confinement and his remedy is under civil rights law.” Id. See also Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.1999), cert. denied, 528 U.S. 954, 120 S.Ct. 379 (holding that habeas is the proper vehicle for presenting a claim “if but only if the prisoner is seeking to ‘get out’ of custody in a meaningful sense”). Bunn argues that his claim indeed does relate to the “fact or duration” of his confinement. He submits that, while the re porting itself is not a “fact or duration of confinement,” it is a part of his sentence, relying on Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998) (Valona I). But the fact that the notification is connected to the sentence does not advance the analysis, because even conditions of confinement are related to a person’s sentence and affect its severity (such as the difference between living in the general population or in disciplinary segregation), and prison conditions are certainly contemporaneous with the sentence. Bunn also argues that if the notification takes effect upon his release into the general public, new limitations on his ability to move freely will be put in place. See Falcon v. United States Bureau of Prisons, 52 F.3d 137, 139 (7th Cir.1995) (endorsing the “level of confinement” test). For example, he will have to report to his probation officer any instance in which he has contact with police. Even assuming that reporting requirements are more onerous for released prisoners subject to BOP notifications, this fact does not make those requirements something that adds to the length of a person’s confinement. The better analogy is to changes in levels of security within a prison, or changes from one prison to another, which cannot be attacked using the habeas corpus statutes. See DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir.2000). See also Graham, 922 F.2d at 381 (if a prisoner is challenging “merely the conditions of his confinement his proper remedy is under the civil rights law”); Pischke, 178 F.3d at 499 (habeas corpus available only if challenged" }, { "docid": "22172567", "title": "", "text": "(7th Cir.1998). Second, under Sandin v. Conner, 515 U.S. 472, 483-87, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), it is unlikely that Finfrock has a pro-tectible liberty interest in avoiding segregation, a requirement for any due process claim. See Wagner v. Hanks, 128 F.3d 1173, 1177 (7th Cir.1997). Nevertheless, since these issues have yet to be briefed, we only mention them here. . We emphasize that the action must be a proper habeas corpus action. Our ruling is not intended in any way to suggest that the district courts should not look beyond the label the petitioner attaches to his pleading to ensure that the proper procedural regime is followed. See generally Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.1999) (discussing when habeas corpus is appropriate and whether a mislabeled action should be converted or dismissed). . Likewise, the clerk of the district court, who administers the collection of filing fees, is directed to stop using the procedure outlined in 28 U.S.C. § 1915(b)(2) to collect unpaid portions of filing fees owed by prisoners in habeas corpus actions. Requests by prisoners for refunds of their appellate fees, however, will not be entertained since \"every litigant has the legal responsibility to pay the filing and docketing fees to the extent feasible.” Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir.1999). A court has it within its discretion to insist that litigants proceeding IFP in non-PLRA cases must nonetheless pay a fee commensurate with their ability to do so. Id. at 1083-84. And it seems to us clear that, by definition, a prisoner was able to pay anything that he or she has already paid. . We recognize that this conclusion might be thought to conflict with the decision of the Tenth Circuit in Montez v. McKinna, 208 F.3d 862 (10th Cir.2000). The Montez court held that state prisoners who are challenging the execution of their sentence must use 28 U.S.C. § 2241, in the context of a challenge to a decision by Wyoming prison authorities to move the plaintiff from a state operated prison in Wyoming to a privately" }, { "docid": "23567705", "title": "", "text": "to protect it. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Protected liberty or property interests generally arise either from the Due Process Clause or from state-created statutory entitlement. See Board of Regents v. Roth, 408 U.S. 564, 575, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court announced a new standard for determining whether prison conditions deprive a prisoner of a liberty interest that is protected by procedural due process guarantees. Although the Court acknowledged that liberty interests could arise from means other than the Due Process Clause itself, the Court concluded that state — created liberty interests could arise only when a prison’s action imposed an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 483, 115 S.Ct. 2293. At issue in Sandin was whether the plaintiffs thirty-day detention in disciplinary custody in a Hawaii prison impacted any protected liberty interest under the Fourteenth Amendment. The Court concluded that the prisoner in Sandin did not have a protected liberty interest in remain ing free of disciplinary detention or segregation because his thirty-day detention, although punitive, “did not exceed similar, but totally discretionary confinement in either duration or degree of restriction.” Id. at 486, 115 S.Ct. 2293. In finding that the prisoner’s thirty-day confinement in disciplinary custody did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest, the Court considered the following two factors: 1) the amount of time the prisoner was placed into disciplinary segregation; and 2) whether the conditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed upon other inmates in solitary confinement. Id. The parties in this case do not dispute the fact that very few Pennsylvania prisoners have been confined in administrative custody for periods of eight years or more. Ben Varner, the Superintendent who reviewed the PRC decisions on Shoats, testified that to the best of his recollection," }, { "docid": "22351709", "title": "", "text": "v. Fields, 280 F.3d 69 (2d Cir.2000). See Dist. Ct. op. at *17-*18. In Tellier, a federal inmate allegedly was placed in administrative detention in the SHU for more than 500 days without being informed of the reasons for his placement or receiving any hearings. See 280 F.3d at 74. The regulations governing administrative segregation, 28 C.F.R. § 541.22, entitle inmates to “an administrative detention order detailing the reasons for placing an inmate in administrative detention ... provided institutional security is not compromised thereby.” 28 C.F.R. § 541.22(b). Moreover, the regulations require a Segregation Review Officer to “hold a hearing and formally review the status of each inmate who spends seven continuous days in administrative detention, and thereafter ... hold a hearing and review these cases formally at least every 30 days.” Id. § 541.22(c)(1). The regulations specifically provide that administrative detention “is to be used only for short periods of time except ... where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns.” Id. In assessing whether a prisoner had a protected liberty interest in avoiding administrative segregation, Tellier looked to Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), in which the Supreme Court held that state-created liberty interests of prisoners were limited to freedom from restraint that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 483-84, 115 S.Ct. 2293. Since Sandin, the rule in this Circuit has been that a prisoner has a protected liberty interest “ ‘only if the deprivation ... is atypical and significant and the state has created the liberty interest by statute or regulation.’ ” Tellier, 280 F.3d at 80 (quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997)) (omission in original); see also Palmer v. Richards, 364 F.3d 60, 64 & n. 2 (2d Cir.2004). Numerous cases in this Circuit have discussed the “atypical and significant hardship” prong of Sandin. Relevant factors include both the conditions of segregation and its duration. See Palmer, 364 F.3d at 64. Segregation of longer than 305 days" }, { "docid": "1657687", "title": "", "text": "conducting this examination, we have held that Sandin “abandoned the framework established in Hewitt for analyzing whether a prisoner who is subjected to a disciplinary confinement had been deprived of a liberty interest.” Frazier, 81 F.3d at 317 (citing Sandin, 515 U.S. at 483, 115 S.Ct. 2293). Sandin, however, rejected only the portion of Hewitt stating that “the use of ‘explicitly mandatory language,’ in connection with the establishment of ‘specified substantive predicates’ to limit discretion, forces a conclusion that the State has created a liberty interest.” Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (quoting Hewitt, 459 U.S. at 472, 103 S.Ct. 864) (emphasis added). Thus, we have construed Sandin to mean that a state “may under certain circumstances create liberty interests which are protected by the Due Process Clause,” Sandin, 515 U.S. at 484, 115 S.Ct. 2293 (emphasis added). Furthermore, we have recognized that nothing in the Sandin decision indicates that the Court intended to “create a per se blanket rule that disciplinary confinement may never implicate a liberty interest.” Miller v. Selsky, 111 F.3d 7, 9 (2d Cir.1997). We note that there is some debate among courts as to whether Section 541.22 creates a protectable liberty interest. Compare, e.g., Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (per curiam) (“We ... hold that § 541.22 does not create a constitutionally protected liberty interest”), Moore v. Ham, No. 92-3305, 1993 WL 5874, at *1 (10th Cir. Jan.12, 1993) (unpublished decision) (“[Plaintiffs] assertion that 28 C.F.R. § 541.22 grants him a liberty interest in remaining in general prison population is not supported by the law of this jurisdiction.”), and Awalt v. Whalen, 809 F.Supp. 414, 416 (E.D.Va. 1992) (“[Sections 541.22 and 541.23] do not create a liberty interest in release from detention which a hearing would protect.”), with, e.g., Muhammad v. Carlson, 845 F.2d 175, 177-78 (8th Cir.1988) (stating in dicta, prior to Sandin, that Section 541.22-23 is “couched in ‘unmistakably mandatory’ language,” and intimating that it would therefore give rise to a protectable liberty interest), and Maclean v. Secor," }, { "docid": "23638917", "title": "", "text": "a liberty interest. “The Due Process Clause,” however, “does not necessarily protect prisoners against the imposition of disciplinary segregation..” Williams v. Ramos, 71 F.3d 1246, 1249 (7th Cir.1995). Rather, prison administrators are “accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). For this reason, “[a] prisoner has no liberty interest in remaining in the general population.” Williams, 71 F.3d at 1248; see also Sandin v. Conner, 515 U.S. 472, 484-86, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Meriwether v. Faulkner, 821 F.2d 408, 414 (7th Cir.1987). But here Lekas does not merely object to his placement in disciplinary segregation, but rather his placement there in contravention of the IDOC’s own mandatory rules and regulations. Indeed, prior to the Supreme Court’s ruling in Sandin v. Conner, statutory or regulatory “language of an ... unmistakably mandatory character”—such as that provided by IDOC rules and regulations-—was recognized as creating a liberty interest protected by the Due Process Clause. Hewitt, 459 U.S. at 471-72, 103 S.Ct. 864; see also Sandin, 515 U.S. at 481-83, 115 S.Ct. 2293; Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir.1997); Williams, 71 F.3d at 1249. The Sandin Court, however, abandoned the methodology of Heivitt and its progeny, shifting the focus of the liberty interest inquiry away from the nature of the statutory and regulatory language and toward the nature of the deprivation actually suffered by the prisoner. Thus, today, a prisoner’s liberty interest, and incumbent entitlement to procedural due process protections, generally extends only to freedom from deprivations that “impose! ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293. In the absence of such “atypical and significant” deprivations, the procedural protections of the Due Process Clause will not be triggered. Now much hinges upon" }, { "docid": "17516613", "title": "", "text": "EASTERBROOK, Circuit Judge. Armen Sylvester, imprisoned in Indiana following his conviction for attempted murder, was charged with conspiring to incite a riot. A hearing officer concluded that Sylvester was the “Baye” to whom a letter referred and ordered Sylvester to spend the next three years in disciplinary segregation. Sylvester concedes that the “Baye” mentioned in the letter conspired to incite a riot but denies that he is that “Baye”; others in the prison used the same nickname, he asserts. The district court denied Sylvester’s petition for habeas corpus, see 28 U.S.C. § 2254, and we issued a certificate of appeal-ability identifying a single issue: “whether the prison conduct adjustment board had some evidence to sustain its finding against the petitioner.” We confess to some doubt that this case should proceed under § 2254. Sylvester does not seek earlier release from custody. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (§ 2254 is proper device by which to seek restoration of good-time credits lost in a disciplinary board’s decision). Instead he contends that his custody should take one form (the prison’s general population) rather than another (segregation). Section 2254 is the appropriate remedy only when the prisoner attacks the fact or duration of “custody.” Although dramatically more restrictive confinement may be contested in a collateral attack under § 2254, see Graham v. Broglin, 922 F.2d 379 (7th Cir.1991), recent cases such as Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), imply that the difference between a prison’s general population and segregation does not implicate a “liberty” interest—and therefore could not-be “custody” for purposes of § 2254. See also Wagner v. Hanks, 128 F.3d 1173 (7th Cir.1997). The difference between § 1983 and § 2254 is potentially important for procedural issues, such as the need for a certificate of appeala-bility and the application of the Prison Litigation Reform Act. See Newlin v. Helman, 123 F.3d 429, 437-38 (7th Cir.1997); Moore v. Pemberton, 110 F.3d 22 (7th Cir.1997). Perhaps Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir.1997), which extends Edwards v. Balisok," }, { "docid": "22351710", "title": "", "text": "protected liberty interest in avoiding administrative segregation, Tellier looked to Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), in which the Supreme Court held that state-created liberty interests of prisoners were limited to freedom from restraint that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 483-84, 115 S.Ct. 2293. Since Sandin, the rule in this Circuit has been that a prisoner has a protected liberty interest “ ‘only if the deprivation ... is atypical and significant and the state has created the liberty interest by statute or regulation.’ ” Tellier, 280 F.3d at 80 (quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997)) (omission in original); see also Palmer v. Richards, 364 F.3d 60, 64 & n. 2 (2d Cir.2004). Numerous cases in this Circuit have discussed the “atypical and significant hardship” prong of Sandin. Relevant factors include both the conditions of segregation and its duration. See Palmer, 364 F.3d at 64. Segregation of longer than 305 days in standard SHU conditions is sufficiently atypical to require procedural due process protection under Sandin. See id. at 65 (citing Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000)). When confinement is of an intermediate duration — between 101 and 305 days — “ ‘development of a detailed record’ of the conditions of the confinement relative to ordinary prison conditions is required.” Id. at 64-65 (quoting Colon, 215 F.3d at 232). Applying these standards, Tellier first observed that the prisoner had alleged confinement of more than 500 days “under conditions that differ markedly from those in the general population,” finding this sufficient to allege “atypical and significant” hardships. 280 F.3d at 80. Turning to the language of the regulations, the Court agreed that because the initial decision to place a prisoner in administrative detention is a discretionary one, the plaintiff did not have a “protected liberty interest that is violated when the Warden removes him or her from the general population.” Id. at 82. However, the Court found, the regulations constrain the warden’s discretion in" }, { "docid": "3332053", "title": "", "text": "above hearing. Additionally, § 541.22(c)(1) mandates that the “[sjtaff will conduct a psychiatric or psychological assessment, including a personal interview, when administrative detention continues beyond 30 days.” Finally, § 541.22(a)(6) mandates further procedures and approvals necessary for placements in administrative detention exceeding ninety days, including review by the Regional Director and the Assistant Director of the Correctional Programs Division. We conclude that the substantive predicates and extensive use of mandatory language in § 541.22 would create a liberty interest in remaining in the general prison population under the analysis used by the Supreme: Court in Hewitt and by this Court in Sheley and McQueen. This analysis was ’applicable at the time of the challenged conduct in the instant case. However, after the challenged conduct took place, the Supreme Court expressly abandoned Hewitt’s methodology. See Sandin v. Conner, 515 U.S. 472, 483 n. 5, 115 S.Ct. 2293, 2300 n. 5, 132 L.Ed.2d 418 (1995). The Supreme Court stated that “the search for a negative implication from mandatory prison regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause.” Id. The Court then stated: States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 483-84, 115 S.Ct. at 2300 (citation omitted). Applying this standard, the Supreme Court determined that the Hawaii prison regulation at issue in Sandin did not give rise to a protected liberty interest upon the plaintiff/prisoner’s transfer to disciplinary confinement. Id. at 487, 115 S.Ct. at 2302. The Supreme Court specifically stated: [The prisoner’s] confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction. Indeed, the conditions at [the prison] involve significant amounts of “lockdown time” even for inmates in the general population. Based" }, { "docid": "23638922", "title": "", "text": "does not constitute a deprivation of a liberty interest. Sandin, 515 U.S. at 486, 115 S.Ct. 2293; Hewitt, 459 U.S. at 468, 103 S.Ct. 864; Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (holding that the placement of an inmate in nondisciplinary segregation for three months did not constitute a deprivation of a liberty interest); see also Williams, 71 F.3d at 1248 (“A prisoner has no liberty interest in remaining in the general population.”). Because any member of the general prison population may at any time find himself in segregation for a nondisciplinary reason, the conditions of discretionary segregation provide the most apt benchmark for assessing whether the nature of a plaintiffs confinement in disciplinary segregation works “a major disruption in his environment.” Thus, when a court compares disciplinary segregation to the general prison population, it is effectively comparing disciplinary segregation to discretionary segregation. Accordingly, “under Sandin the key comparison is between disciplinary segregation and nondisciplinary segregation rather than between disciplinary segregation and the general prison population.” Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir.1997). Indeed, taking Sandin’s prescribed comparisons to their logical extremes, it is possible that the conditions of discretionary segregation against which the plaintiffs confinement is to be judged are not necessarily those of the prison in which the plaintiff is incarcerated, but rather those of the most restrictive prison in the state penal system, Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir.1997) (“We do not think that comparison can be limited to conditions in the same prison, unless it is the state’s most secure one. To distinguish between the different parts of the same prison, on the one hand, and the different prisons in the same system, on the other, would be arbitrary.”) (internal citations omitted), and perhaps even those of the most restrictive prison in the entire country, id. at 1176 (“The logic of Sandin implies that the conditions of [plaintiffs] disciplinary segregation are atypical only if no prison in the United States to which he might be transferred for nondisciplinary reasons is more restrictive.”). This is a harsh, and perhaps unintentional," }, { "docid": "3313543", "title": "", "text": "v. McBride, 188 F.3d 784, 785-86 (7th Cir.1999). The disciplinary sanction, when viewed in its entirety, imposed upon Mr. Cochran affected both the duration of his confinement (at least potentially) and a condition of his confinement. We have explained previously that a prisoner challenging the fact or duration of his confinement must seek habeas corpus relief; a prisoner challenging a condition of his confinement, by contrast, must seek relief under 42 U.S.C. § 1983: State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of custody. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). State prisoners who want to raise a constitutional challenge to any other decision, such as transfer to a new prison, administrative segregation, exclusion from prison programs, or suspension of privileges, must instead employ § 1983 or another statute authorizing damages or injunctions — when the decision may be challenged at all, which under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), will be uncommon. Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir.2000). Mr. Cochran’s loss of telephone privileges affected the conditions of his custody; the suspended deprivation of good time credits, however, could have lengthened his confinement. Consequently, he filed a habeas corpus petition to contest this potential loss of good time credits. Section 2254 requires that the petitioner be “in custody.” 28 U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). In Preiser v. Rodriguez, 411 U.S. at 487-89, 93 S.Ct. 1827, the Supreme Court established that actions for the restoration of good time credits fall within the “core” of habeas corpus because they go directly to the constitutionality of the prisoner’s confinement itself and seek 'either immediate release or a shortened length" }, { "docid": "1302235", "title": "", "text": "exhaustion requirements. See generally Romandine v. United States, 206 F.3d 731, 737 (7th Cir.2000). The district court should have evaluated Bunn’s case as he brought it. For that reason, the fact that his appointed counsel on appeal has no objection to the recharacterization does not matter. We will proceed to consider whether Bunn’s effort to obtain a declaratory judgment should have gone forward, or if it should have been dismissed for failure to choose the right procedural vehicle. See Preiser, 411 U.S. at 498-500, 93 S.Ct. 1827. For present purposes, the answer to the declaratory relief versus habeas riddle is suggested by Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.1991), where we held that “[i]f the prisoner is seeking what can fairly be described as a quantum change in the level of custody-whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation ... then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law.” Id. See also Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.1999), cert. denied, 528 U.S. 954, 120 S.Ct. 379 (holding that habeas is the proper vehicle for presenting a claim “if but only if the prisoner is seeking to ‘get out’ of custody in a meaningful sense”). Bunn argues that his claim indeed does relate to the “fact or duration” of his confinement. He submits that, while the re porting itself is not a “fact or duration of confinement,” it is a part of his sentence, relying on Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998) (Valona I). But the fact that the notification is connected to the sentence does not advance the analysis, because even conditions of confinement are related to a person’s sentence and affect its severity (such as the difference between living in the general population or in disciplinary segregation), and prison conditions are certainly contemporaneous with the sentence. Bunn also argues" }, { "docid": "22172566", "title": "", "text": "apply the correct standard and make an initial decision whether Finfrock may proceed IFP on appeal. . Both Newlin and Thurman addressed many other questions pertaining especially to the PLRA. As we explain in more detail below, this opinion is limited to the single aspect before us in these cases. . In a stipulation filed with this court on November 19, 1998, the parties agreed that the Bureau of Prisons has adjusted the amount due from $1245 to $593. The lower number reflects the actual cost the government incurred in repairing the door. Walker has been making payments against this debt through deductions from his prison account. . We doubl seriously that Finfrock is entitled to pursue No. 97-3800, the one appeal that does not involve a punishment affecting the length of his custody, but rather involves a punishment affecting only the place of his confinement (segregation vs. general population). First, it is questionable whether habeas corpus is the appropriate procedure for challenging this sort of punishment. See Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.1998). Second, under Sandin v. Conner, 515 U.S. 472, 483-87, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), it is unlikely that Finfrock has a pro-tectible liberty interest in avoiding segregation, a requirement for any due process claim. See Wagner v. Hanks, 128 F.3d 1173, 1177 (7th Cir.1997). Nevertheless, since these issues have yet to be briefed, we only mention them here. . We emphasize that the action must be a proper habeas corpus action. Our ruling is not intended in any way to suggest that the district courts should not look beyond the label the petitioner attaches to his pleading to ensure that the proper procedural regime is followed. See generally Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.1999) (discussing when habeas corpus is appropriate and whether a mislabeled action should be converted or dismissed). . Likewise, the clerk of the district court, who administers the collection of filing fees, is directed to stop using the procedure outlined in 28 U.S.C. § 1915(b)(2) to collect unpaid portions of filing fees owed by prisoners" }, { "docid": "22949924", "title": "", "text": "to renounce his affiliation with all “security threat groups,” he would remain in the STGMU indefinitely. Id. at 511. Among other restrictions, inmates transferred to the STGMU were allowed just five hours per week outside their cells, were strip-searched every time they exited or reentered their cells, could shower or shave only every third day, were banned from regular prison programs, and were prohibited from corresponding with any other inmate. Id. at 523 n. 1 (Rendell, J., dissenting). We held that these “additional restrictions” did “not impose an atypical and significant hardship in relation to the ordinary incidents of prison life,” and thus did not implicate a protected liberty interest. Id. at 522-23 (citations omitted). Under Sandin and Fraise, we cannot say that Torres has alleged “the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” Sandin, 515 U.S. at 486, 115 S.Ct. 2293. “Sandin instructs that placement in administrative confinement will generally not create a liberty interest.” Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir.2000) (citation omitted). Torres was placed in disciplinary detention for 15 days and administrative segregation for 120 days in a State where prisoners have no protected liberty interest in being free of indefinite confinement in the STGMU. See Fraise, 283 F.3d at 522-23; cf. Griffin v. Vaughn, 112 F.3d 703, 706-08 (3d Cir.1997) (holding that a Pennsylvania prisoner did not have a protected liberty interest in avoiding being placed in administrative custody for 15 months because such lengthy stays were not atypical in Pennsylvania’s penal system). Therefore, Torres was not deprived of a protected liberty interest, and we affirm the District Court’s grant of summary judgment for that reason. Conclusion Because Torres’s due process claim implicated only the conditions, and not the fact or duration, of his confinement, the District Court erred in ruling that the claim was not cognizable under § 1983. However, summary judgment was appropriate because Torres was not deprived of a protected liberty interest. We therefore affirm. . For habeas purposes, \"custody” includes not only incarceration, but also other restraints on liberty, such as" }, { "docid": "22562396", "title": "", "text": "process arguments are premised on the notion that his confinement at USP-Terre Haute violated certain mandatory regulations. Regardless of what the regulations required (a matter we do not decide), Babcock’s CIM classification could give rise to a protected liberty interest only if to house him in a particular institution would “impose[ ] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin v. Conner, — U.S. -, -, 115 S.Ct. 2293, 2300, 182 L.Ed.2d 418 (1995); see also Crowder v. True, 74 F.3d 812, 814 (7th Cir.1996) (“While Sandin addressed state-created liberty interests under the Fourteenth Amendment, its methodology applies equally to Fifth Amendment claims involving federal prison regulations.”). An inmate generally has no constitutionally protected liberty interest in being confined in a particular prison. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); King v. Fairman, 997 F.2d 259, 262 n. 4 (7th Cir.1993) (citing Mewchum), see also Sandin, — U.S. at-, 115 S.Ct. at 2300 (“The time has come to return to the due process principles we believe were correctly established and applied in ... Meachum.”). Moreover, in Higgason, we concluded that, because good-time credits do not “inevitably affect the duration of [the] sentence,” Sandin, — U.S. at -, 115 S.Ct. at 2302, “denying the opportunity to earn credits ... did not infringe on a protected liberty interest.” Higgason, 83 F.3d at 807. To the extent that Babcock attempts to refurbish his substantive Eighth Amendment claim by arguing that disregard of regulations created an intolerable safety risk, we feel that this issue must be resolved with reference to the Eighth Amendment standards discussed above. See Higgason, 83 F.3d at 809; Lunsford v. Bennett, 17 F.3d 1574, 1583 (7th Cir.1994). Babcock’s alternative due process claim— that although administrative detention may have been tolerably safe, he should not have been put to the Hobson’s choice between safety and comfort — is inventive but unpersuasive. Babcock admittedly may have seen no alternative to administrative detention in light of the presence of Mexican Mafia members. We believe, however, that where an" }, { "docid": "23638921", "title": "", "text": "the general prison population seems inevitably subsumed by its prescribed comparison be tween disciplinary segregation and discretionary segregation. This is because, in every state’s prison system, any member of the general prison population is subject, without remedy, to assignment to administrative segregation or protective custody at the sole discretion of prison officials, Wagner, 128 F.3d at 1176 (“[E]ven a prisoner who had committed a white-collar crime and had been assigned to the lowest-security prison in the state’s system might find himself in segregation for a nondisciplinary reason.”); see also Hewitt, 459 U.S. at 468, 103 S.Ct. 864 (“[A]dministra-tive segregation is the sort of confinement that inmates should reasonably anticipate.”); Meriwether v. Faulkner, 821 F.2d 408, 414 (7th Cir.1987) (“Given the broad uses of administrative segregation ... inmates should reasonably anticipate being confined in administrative segregation at some point during their incarceration.”); if for no other reason than to alleviate overcrowding concerns within the prison. See also supra, note 4 (listing various valid purposes for discretionary segregation). Such reassignment from the general population to discretionary segregation does not constitute a deprivation of a liberty interest. Sandin, 515 U.S. at 486, 115 S.Ct. 2293; Hewitt, 459 U.S. at 468, 103 S.Ct. 864; Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (holding that the placement of an inmate in nondisciplinary segregation for three months did not constitute a deprivation of a liberty interest); see also Williams, 71 F.3d at 1248 (“A prisoner has no liberty interest in remaining in the general population.”). Because any member of the general prison population may at any time find himself in segregation for a nondisciplinary reason, the conditions of discretionary segregation provide the most apt benchmark for assessing whether the nature of a plaintiffs confinement in disciplinary segregation works “a major disruption in his environment.” Thus, when a court compares disciplinary segregation to the general prison population, it is effectively comparing disciplinary segregation to discretionary segregation. Accordingly, “under Sandin the key comparison is between disciplinary segregation and nondisciplinary segregation rather than between disciplinary segregation and the general prison population.” Wagner v. Hanks, 128 F.3d 1173, 1175" }, { "docid": "21426347", "title": "", "text": "turns on whether he had a constitutionally protected liberty interest in avoiding placement in TLU. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 459-60, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Gillis v. Litscher, 468 F.3d 488, 491-92 (7th Cir.2006). The Constitution itself does not create an interest in avoiding transfer within a correctional facility. See Wilkinson, 545 U.S. at 222, 125 S.Ct. 2384; Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Nevertheless, in San-din the Supreme Court determined that the Fourteenth Amendment provides to inmates a liberty interest in avoiding placement in more restrictive conditions, such as segregation, when those conditions pose an atypical and significant hardship when compared to the ordinary incidents of prison life. See 515 U.S. at 484, 115 S.Ct. 2293. However, since the Court decided Sandin, we have repeatedly determined that even extremely harsh prison conditions may not be so “atypical” as to create the liberty interest the Court contemplated. See, e.g., Lekas v. Briley, 405 F.3d 602, 609 (7th Cir.2005); Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir.1998); Wagner v. Hanks, 128 F.3d 1173, 1175-76 (7th Cir.1997). To that end, we have concluded that inmates have no liberty interest in avoiding transfer to discretionary segregation — that is, segregation imposed for administrative, protective, or investigative purposes. See Lekas, 405 F.3d at 608-09 & 608 n. 4 (“[R]eassignment from the general population to discretionary segregation does not constitute a deprivation of a liberty interest.”); Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (holding that placement of inmate in non-disciplinary segregation for three months did not create liberty interest). Indeed, there is nothing “atypical” about discretionary segregation; discretionary segregation is instead an “ordinary incident of prison life” that inmates should expect to experience during their time in prison. See Lekas, 405 F.3d at 608-09; Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir.1997) (“Even a prisoner who had committed a white-collar crime and had been assigned to the lowest-security prison in the state’s system might find himself in segregation for a nondisciplinary reason.”); Meriwether v. Faulkner," } ]

[ { "docid": "22206147", "title": "", "text": "such as whether the review of the district court’s determination of whether a punitive damage award is constitutionally excessive. Cooper Indus. v. Leatherman Tool Group, — U.S. —, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (internal quotation marks omitted). If the Court concludes Ornelas applies outside the Fourth Amendment context, a fortiori it would seem to apply to analogous determinations within the Fourth Amendment framework. . We overrule the contrary statements in United States v. Furrow, 229 F.3d 805, 816 (9th Cir.2000); United States v. Soliz, 129 F.3d 499, 502 (9th Cir.1997); United States v. Depew, 8 F.3d 1424, 1426 (9th Cir.1993); United States v. Brady, 993 F.2d 177, 178 (9th Cir.1993); and United States v. Traynor, 990 F.2d 1153, 1156-57 (9th Cir.1993). Because the en banc court ultimately remands the case for a determination of whether the search took place within the curtilage, we retain jurisdiction over any subsequent appeals. . The majority in Redmon did not reach the curtilage question. The Seventh Circuit, without discussion, has cited Ornelas for the proposition that the curtilage is to be reviewed for clear error. See United States v. Shanks, 97 F.3d 977, 979 (1996). We can’t say whether a subsequent panel in the Seventh Circuit will treat the unreasoned citation as having settled the question. To the extent , it does reflect the judgment that Ornelas requires the curtilage to be reviewed for clear error, we respectfully disagree. . See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) (Marbury has a right and a remedy, but the U.S. Supreme Court lacks jurisdiction); United States v. Vallejo, 237 F.3d 1008, 1026 n. 9 (9th Cir.2001) (recognizing four \"independent grounds for reversal” and remanding for a new trial); Association of Mexican-American Educators v. California, 231 F.3d 572, 579 (9th Cir.2000) (en banc) (ruling on whether Title VI and VII apply even though the issues were unnecessary to the disposition of the case); United States v. Weems, 49 F.3d 528, 531 (9th Cir.1995) (Schroeder, J.) (\"Because we conclude that the government may retry Weems, we also address Weems' contention" } ]

[ { "docid": "5403222", "title": "", "text": "federal determination of the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution.”). . We decline to address whether the Davis standard should be applied to invocations of the right to remain silent. In Davis v. United States, discussed in Part V of this opinion, the Supreme Court held that a suspect must unequivocally assert his right to request counsel. 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). We have previously held that application of such a rule to tire invocation of silence is not contrary to clear Supreme Court law under AEDPA. See Barnes, 160 F.3d at 225. We note that other circuits that have addressed this issue — including the Sixth, Seventh, Eighth, and Eleventh — have held that the Davis rule applies equally to the right to remain silent. See United States v. Banks, 78 F.3d 1190, 1197 (7th Cir.1996) (holding that the response \"I don’t got nothing to say” was ambiguous in the context of suspect’s other comments because it could be construed as an angry response), rev’d on other grounds, Mills v. United States, 519 U.S. 990, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996); United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (determining whether the suspect’s statements “indicate an unequivocal decision to invoke the right to remain silent” (emphasis added)); Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir.1995) (\"Law enforcement officers are not required to terminate an interrogation unless the invocation of the right to remain silent is unambiguous.” (citing Davis))-, see also United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir.2000) (citing Davis in implicitly holding that a suspect must assert \"his right to remain silent sufficiently clearly”); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.1996) (assuming, ar-guendo, that Davis applies to invocations of the right to remain silent, but not holding that it definitely does). . The panel opinion, applying a totality of the circumstances analysis, concluded that Soffar had unambiguously requested counsel. Soffar, 237 F.3d at 457." }, { "docid": "4491502", "title": "", "text": "going to get the death penalty anyway.” Id. at 912. In Bushyhead, the government argued that Bushyhead was not in fact silent, but rather, voluntarily chose to talk to the agent. Id. We disagreed, reasoning that Bushyhead’s statement constituted “the invocation of silence itself.” Id. Because Bushyhead involved pr e-Miranda silence, its reasoning applies with even more force here, where the relevant statements occurred after Arnold had been given his Miranda warnings. Indeed, we held, after Davis, that a suspect unequivocally invoked his right to silence even when he responded affirmatively — when asked whether he desired to have his sworn statement taken regarding his true citizenship and nationality and his activity at the house-with, “Yes, regarding my ... citizenship.” United States v. Soliz, 129 F.3d 499, 504 (9th Cir.1997), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir.2001) (en banc). We concluded “that this statement constituted an unequivocal invocation of Soliz’s right to remain silent on all issues, except his citizenship.” Id. In contrast, just as in Davis, where a suspect’s request for counsel is qualified with words such as “maybe” or “might,” we have concluded that the suspect did not unambiguously invoke his right to counsel. Thus, in Clark v. Murphy, 331 F.3d 1062 (9th Cir.2003), we held that the state court’s conclusion that “I think I would like to talk to a lawyer” was not an unambiguous request for counsel was not contrary to clearly established federal law. Id. at 1072. Similarly, in United States v. Doe, 60 F.3d 544 (9th Cir.1995), we concluded that “maybe he ought to see an attorney” was not a clear and unambiguous request for counsel. Id. at 546. See also United States v. Cheely, 36 F.3d 1439, 1448 (9th Cir.1994) (contrasting statements qualified with words such as “maybe” with Cheely’s unequivocal refusal to waive his right to counsel). Here, Arnold’s statement that he didn’t want to talk on tape was neither ambiguous nor equivocal. Indeed, the interrogating officer agreed that Arnold “was specific, he didn’t want to talk on tape.” Unlike in Clark, there is no" }, { "docid": "12106195", "title": "", "text": "Cir.1997); Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir.1995); United States v. Johnson, 56 F.3d 947, 955 (8th Cir.1995); People v. Stitely, 35 Cal.4th 514, 26 Cal.Rptr.3d 1, 108 P.3d 182, 196 (2005); State v. Payne, 199 P.3d 123, 133-34 (Idaho 2008); State v. Walker, 129 Wash.App. 258, 118 P.3d 935, 943-44 (2005). This court has several times declined to decide whether the Davis requirement of a clear and unequivocal invocation applies to the right to remain silent. See United States v. Rodriguez, 518 F.3d 1072, 1078 n. 5 (9th Cir.2008) (avoiding addressing the issue and noting that this court had so demurred in four prior cases). We similarly decline to do so here. The question before us is not whether the Davis rule applies to an invocation of the right to remain silent, but whether the state appellate court contravened Supreme Court precedent by applying it in that manner. See Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In similar circumstances, the First Circuit, which has also withheld judgment regarding the application of Davis to the invocation of the right to remain silent, held that it could not “deem unreasonable a conclusion by the [state] courts ... that [was] consistent with the approach taken by so many respected tribunals.’ ” James v. Marshall, 322 F.3d 103, 108 (1st Cir.2003) (quoting Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir.1999)). We, likewise, could not conclude that application of the Davis rule to an invocation of the right to remain silent is contrary to or an unreasonable application of Supreme Court precedent where the Supreme Court has neither “squarely addresse[d]” when an ambiguous statement amounts to an invocation of the right to remain silent nor refused to extend the Davis rule to an invocation of the right to remain silent. Wright v. Van Patten, — U.S.-, 128 S.Ct. 743, 746, 169 L.Ed.2d 583 (2008). In this case, although the state appellate court never expressly applied Davis’s objective inquiry in analyzing DeWeaver’s request to return to jail, its reasoning and result are not contrary to" }, { "docid": "1563707", "title": "", "text": "commit all such determinations to three-judge panels. . Although the SJC did not cite to Davis, its reference to the “ambiguous” nature of the petitioner’s assertion of his Fifth Amendment rights, see Bui I, 419 Mass, at 397 n. 4, 645 N.E.2d at 693 n. 4, meshes neatly with the district court's rationale. . Two courts, recognizing a possible theoretical distinction between the right to counsel and the right to remain silent, have left the issue open. See Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.1996). . There are limits to this assumption. To the extent that the petitioner calumnizes the district court’s reliance on Davis as improperly importing Sixth Amendment principles into the Fifth Amendment context, he is barking up the wrong tree. Davis did not deal with the Sixth Amendment, but, rather, with the Fifth Amendment right to counsel articulated in Miranda. See Davis, 512 U.S. at 457-58, 114 S.Ct. 2350. . To be sure, the petitioner argues that the trial court’s conclusion contravened established Supreme Court precedent holding that the issue of bias is always relevant. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). As we explain below, our review of the record convinces us that the petitioner misconstrues the trial court’s ruling and that the “contrary to” prong of the AEDPA standard is not implicated here. . In his principal brief on appeal, the petitioner now suggests that he had supported his theory by evidence that Mong was Thinh’s father-in-law; that Mong, Thinh, and Bui had been together in California shortly after the murders; that Thinh had previously been convicted of a drug offense; and that autopsy reports showed that one of the victims had cocaine in her blood. This evidence says nothing about Mong's interest or role in framing the petitioner. Moreover, under the AEDPA standard of review, such a shaky eviden-tiary foundation would not permit us to discredit the reasonableness of the SJC’s conclusions. . The trial judge's earlier refusal to permit the petitioner to cross-examine" }, { "docid": "1241381", "title": "", "text": "Shi’s waiver was knowing and intelligent. See Doe, 155 F.3d at 1074 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)); Rodriguez-Preciado, 399 F.3d at 1127-28 (concluding that a district court did not commit clear error in finding that a foreign defendant made a valid waiver despite confusion between the interrogating offi cers and the defendant over the word “methamphetamine” because the defendant told the officers he understood his rights and the officers did not indicate that the defendant had difficulty understanding English). C Even if Shi’s initial waiver were valid, he contends that he invoked his right to silence before he spoke. “Once a person invokes the right to remain silent, all questioning must cease.” Anderson v. Terhune, 516 F.3d 781, 784 (9th Cir.2008) (en banc) (citing Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). While a defendant who invokes his right to counsel must do so unambiguously, Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), we have not yet determined whether such rule applies when a defendant invokes his right to silence. Still, we have established that, at a minimum, such invocation must not be “so equivocal or unclear that ‘a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking’ his right to remain silent.” Arnold v. Runnels, 421 F.3d 859, 866 (9th Cir.2005) (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350 (emphasis in original)). Shi suggests that his dismissal of Agent Torikai’s questions as “insignificant” was an invocation of his right to silence. But as the district court explained, such claim is belied by the fact that Shi consistently manifested his willingness to answer questions and that Shi signed the waiver form after making this comment. These facts distinguish this case from United States v. Heldt, 745 F.2d 1275 (9th Cir.1984), the principal authority on which Shi relies. In Heldt, the defendant was read his Miranda rights and provided with a waiver form, but told his interrogator that he" }, { "docid": "12106194", "title": "", "text": "the interrogating officers that the suspect wanted a lawyer present. Id. at 460, 114 S.Ct. 2350 (quoting Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)). The Court applied an objective test, requiring a suspect to “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. at 459, 114 S.Ct. 2350. In focusing on the need for effective law enforcement, the Court noted that this bright line rule protected both the suspect’s interests and the valid investigatory tool of proper interrogation. Id. at 461, 114 S.Ct. 2350. Since the Court’s decision in Davis, many state and federal courts have extended its rule and required suspects to unambiguously invoke the right to remain silent before police must halt an interrogation. United States v. Banks, 78 F.3d 1190, 1197-98 (7th Cir.1996), vacated, Mills v. United States, 519 U.S. 990, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996), on remand, 122 F.3d 346, 350-51 (7th Cir.1997); Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir.1995); United States v. Johnson, 56 F.3d 947, 955 (8th Cir.1995); People v. Stitely, 35 Cal.4th 514, 26 Cal.Rptr.3d 1, 108 P.3d 182, 196 (2005); State v. Payne, 199 P.3d 123, 133-34 (Idaho 2008); State v. Walker, 129 Wash.App. 258, 118 P.3d 935, 943-44 (2005). This court has several times declined to decide whether the Davis requirement of a clear and unequivocal invocation applies to the right to remain silent. See United States v. Rodriguez, 518 F.3d 1072, 1078 n. 5 (9th Cir.2008) (avoiding addressing the issue and noting that this court had so demurred in four prior cases). We similarly decline to do so here. The question before us is not whether the Davis rule applies to an invocation of the right to remain silent, but whether the state appellate court contravened Supreme Court precedent by applying it in that manner. See Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In similar circumstances, the First Circuit, which has also" }, { "docid": "4491517", "title": "", "text": "that immediately after invoking the right, Arnold waived it. The state court of appeal stated that after the interrogator turned on the tape recorder, \"Appellant reiterated his waiver of Miranda rights.” It is clear from the record, however, that there was no new waiver, but merely a statement that at the beginning of the interrogation — before Arnold said he didn’t want to talk on tape — he had signed a waiver card. . We are, of course, mindful of the fact that under 28 U.S.C. § 2254(d), we cannot find constitutional error merely because a state court’s decision conflicts with Ninth Circuit precedent. Our cases, however, “maybe persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help us determine what law is ‘clearly established.' \" Duhaime v. Duc-harme, 200 F.3d 597, 600-01 (9th Cir.2000). It is in this light and for this purpose that we discuss Ninth Circuit precedent. . The Supreme Court consistently has explained that \"Miranda warnings contain an implied promise, rooted in the Constitution, that 'silence will carry no penalty.' \" Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (quoting Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)); South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (explaining that Doyle rests on “the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial”). . We have left open the question of whether the rule in Davis, which involved the invocation of the right to counsel, applies equally to the invocation of the right to silence. See Soliz, 129 F.3d at 504 n. 3; Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996). . Even on the question that the prior courts mistakenly focused on — Did the \"no comment\" responses unequivocally invoke Miranda rights? — the courts’ determinations are objectively unreasonable. Comparing this case to Davis" }, { "docid": "12722223", "title": "", "text": "128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (holding that the state court’s decision was not an unreasonable application of Supreme Court precedent where no Supreme Court decision “squarely addresses the issue” in the case or gives a “clear answer to the question presented”); Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). In deriving a rule from these decisions, we explained that “[t]he common thread in all these cases is that when there is a principled reason for the state court to distinguish between the case before it and Supreme Court precedent, the state court’s decision will not be an unreasonable application of clearly established Supreme Court law.” Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir.2010) (en banc). Ill Mindful of these principles, we turn to John-Charles’s challenge to the state court’s ruling on his Sixth Amendment claim, specifically, that John-Charles was erroneously forced to go to trial without an attorney, that his Sixth Amendment rights were thereby violated, and that such a violation is a structural error requiring reversal. A Supreme Court decisions have long established the principle that the Sixth Amendment guarantees an indigent criminal defendant the appointment of counsel for his defense at all critical stages of his prosecution, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and that a governmental violation of this right is “structural error” that demands automatic reversal of the defendant’s underlying conviction, United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). On the other hand, the Supreme Court has also recognized that a defendant has the reciprocal constitutional right to “proceed without counsel when he voluntarily and intelligently elects to do so,” Faretta, 422 U.S. at 807, 95 S.Ct. 2525, and has acknowledged the tension between these two reciprocal rights, see id. at 832-35, 95 S.Ct. 2525; see also United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir.2009) (noting that “[a] defendant therefore has two correlative and mutually exclusive Sixth Amendment rights: the right to have counsel, on one hand, and the right" }, { "docid": "15885728", "title": "", "text": "is often a threshold issue: whether the suspect actually invoked the rights in the first instance. If the individual unambiguously invokes his rights, he “is not subject to further interrogation by the authorities ... unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). As the Davis decision makes clear, this threshold inquiry is an objective one. “Invocation of the Miranda right to counsel requires at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Id. (internal citations omitted). Both Smith and Davis addressed the question of the need for clarity in a suspect’s invocation of the right to counsel, rather than the right to remain silent implicated in this case. However, every circuit that has directly addressed the issue “has concluded that Davis applies to both components of Miranda: the right to counsel and the right to remain silent.” Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir.1999) (collecting cases). This circuit, joining the Ninth and the Second Circuits, has heretofore left the issue open. Id. at 239 (“[W]e acknowledge that Davis does not ‘authoritatively’ answer the question in the narrow, technical sense of that term.”). Given the habeas context in which James raises the challenge to the treatment of his right to remain silent by the police and the state courts, we leave open again the issue of the applicability of Davis to both the right to counsel and the right to remain silent. “For the purposes of habeas corpus review, we simply cannot deem unreasonable a conclusion by the Massachusetts courts [to apply right" }, { "docid": "4491504", "title": "", "text": "evidence that Arnold qualified that statement with words of equivocation such as “maybe” or “I think.” Arnold’s statement wasn’t so equivocal or unclear that “a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking” his right to remain silent. Davis, 512 U.S. at 459, 114 S.Ct. 2350 (emphasis in the original). Indeed, it is difficult to imagine how much more clearly a layperson like Arnold could have expressed his desire to remain silent. See Barrett, 479 U.S. at 529, 107 S.Ct. 828 (explaining that the words of a request for counsel will be “understood as ordinary people would understand them”). Concluding that Arnold’s statement was ambiguous and equivocal would suggest that a suspect never invokes his right to silence unless he intones some sort of talis-manic phrase, such as “I invoke my right to silence under the Fifth Amendment.” If the statements in Bushyhead and Soliz constituted invocations of the right to silence, then Arnold’s statement that he didn’t want to talk on tape — which arguably was even less ambiguous than the statements in those cases — likewise constituted an invocation of his right to silence. In sum, even under the rule set forth in Davis, Arnold’s statement that he didn’t want to talk on tape was clear and unambiguous. Arnold’s statements were tantamount to silence and the admission of those statements was a violation of Arnold’s Fifth Amendment privilege against self-incrimination. See Doyle, 426 U.S. at 618, 96 S.Ct. 2240; United States v. Velarde-Gomez, 269 F.3d 1023, 1032-33 (9th Cir.2001) (en banc) (holding that evidence of suspect’s lack of physical or emotional reaction when confronted with discovery of marijuana in his vehicle was tantamount to evidence of silence). Any reasonable application of the law would then require the government to establish that after saying he didn’t want to talk on tape, Arnold waived the right he had, moments earlier, invoked. See id. at 475. On this record, it would be objectively unreasonable to determine that Arnold had waived his right not to talk on tape, moments after invoking that right" }, { "docid": "4491501", "title": "", "text": "not unambiguous, analogizing this case, as the prior courts did, to Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350,129 L.Ed.2d 362 (1994), a case involving the invocation of the right to counsel. We have considered, but reject, this argument. The Supreme Court noted in Davis that “a suspect need not speak with the discrimination of an Oxford don.” Id. (internal quotations marks and citation omitted). The words of the request will be “understood as ordinary people would understand them.” Barrett, 479 U.S. at 529, 107 S.Ct. 828. Thus, in applying Davis, neither the Supreme Court nor this court has required that a suspect seeking to invoke his right to silence provide any statement more explicit or more technically-worded than “I have nothing to say.” For example, applying Supreme Court case law, in United States v. Bushyhead, 270 F.3d 905 (9th Cir.2001), we held that the prosecution violated a defendant’s Fifth Amendment right to silence under Miranda when it introduced at trial the defendant’s post-arrest, pr e-Miranda statement, “I have nothing to say, I’m going to get the death penalty anyway.” Id. at 912. In Bushyhead, the government argued that Bushyhead was not in fact silent, but rather, voluntarily chose to talk to the agent. Id. We disagreed, reasoning that Bushyhead’s statement constituted “the invocation of silence itself.” Id. Because Bushyhead involved pr e-Miranda silence, its reasoning applies with even more force here, where the relevant statements occurred after Arnold had been given his Miranda warnings. Indeed, we held, after Davis, that a suspect unequivocally invoked his right to silence even when he responded affirmatively — when asked whether he desired to have his sworn statement taken regarding his true citizenship and nationality and his activity at the house-with, “Yes, regarding my ... citizenship.” United States v. Soliz, 129 F.3d 499, 504 (9th Cir.1997), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir.2001) (en banc). We concluded “that this statement constituted an unequivocal invocation of Soliz’s right to remain silent on all issues, except his citizenship.” Id. In contrast, just as in Davis, where" }, { "docid": "4491520", "title": "", "text": "Lockyer, the Supreme Court held, “[a] state court decision is contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 73, 123 S.Ct. 1166 (citations omitted). Here, the state courts relied on Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), in determining that Arnold did not unambiguously invoke his right to silence. Even though Davis deals with invoking the right to counsel, the government posits that it should extend to cases involving the right to silence because there appears to be no Supreme Court decision directly on point regarding the right to silence. Although the Ninth Circuit left this question open in Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996), several of our sister circuits have extended Davis to cases involving the right to silence. Davis is instructive here because the factual circumstances in this case are similar. In both cases, the question is whether the suspect invoked Fifth Amendment rights such that police were required to stop their custodial interrogation. The majority cites no Supreme Court decision directly on point regarding invocation of the right to silence. Accordingly, the state courts’ reliance on Davis for guidance in this case was reasonable. This is all that needs to be decided under the applicable AEDPA standard. I would also find that the state courts’ determination that Arnold did not unambiguously invoke the right to silence was objectively reasonable in light of the evidence presented. Arnold’s “no comment” responses were objectively ambiguous. Indeed, when the interrogating officers asked Arnold on tape whether he had changed his mind about giving a statement, instead of simply answering “yes,” he responded “no comment.” This response is ambiguous, much like Davis’s comment, “Maybe I should talk to a lawyer.” Davis, 512 U.S. at 455, 114 S.Ct. 2350. In determining whether Fifth Amendment rights were" }, { "docid": "4491503", "title": "", "text": "a suspect’s request for counsel is qualified with words such as “maybe” or “might,” we have concluded that the suspect did not unambiguously invoke his right to counsel. Thus, in Clark v. Murphy, 331 F.3d 1062 (9th Cir.2003), we held that the state court’s conclusion that “I think I would like to talk to a lawyer” was not an unambiguous request for counsel was not contrary to clearly established federal law. Id. at 1072. Similarly, in United States v. Doe, 60 F.3d 544 (9th Cir.1995), we concluded that “maybe he ought to see an attorney” was not a clear and unambiguous request for counsel. Id. at 546. See also United States v. Cheely, 36 F.3d 1439, 1448 (9th Cir.1994) (contrasting statements qualified with words such as “maybe” with Cheely’s unequivocal refusal to waive his right to counsel). Here, Arnold’s statement that he didn’t want to talk on tape was neither ambiguous nor equivocal. Indeed, the interrogating officer agreed that Arnold “was specific, he didn’t want to talk on tape.” Unlike in Clark, there is no evidence that Arnold qualified that statement with words of equivocation such as “maybe” or “I think.” Arnold’s statement wasn’t so equivocal or unclear that “a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking” his right to remain silent. Davis, 512 U.S. at 459, 114 S.Ct. 2350 (emphasis in the original). Indeed, it is difficult to imagine how much more clearly a layperson like Arnold could have expressed his desire to remain silent. See Barrett, 479 U.S. at 529, 107 S.Ct. 828 (explaining that the words of a request for counsel will be “understood as ordinary people would understand them”). Concluding that Arnold’s statement was ambiguous and equivocal would suggest that a suspect never invokes his right to silence unless he intones some sort of talis-manic phrase, such as “I invoke my right to silence under the Fifth Amendment.” If the statements in Bushyhead and Soliz constituted invocations of the right to silence, then Arnold’s statement that he didn’t want to talk on tape — which arguably" }, { "docid": "4491519", "title": "", "text": "and United States v. Nordling, 804 F.2d 1466 (9th Cir.1986), the prior courts took the phrase \"no comment\" from its context and considered whether, in the abstract, \"no comment” is unambiguous. But we cannot ignore Arnold’s first statement, and we do not encounter “no comment\" in the abstract, divorced from any context. This case is therefore unlike Davis or Nordling. In those cases, the suspects being interrogated made no unambiguous statement like Arnold's statement that he didn’t want to talk on tape. . While the point does not determine whether the error was harmless, we do not accept the government’s characterization of the evidence against Arnold as \"compelling” or \"devastating.” CALLAHAN, Circuit Judge, dissenting: I respectfully dissent. The state courts did not unreasonably apply clearly established federal law. “[C]learly established Federal law under [28 U.S.C. § 2254(d)(1) ] is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In Lockyer, the Supreme Court held, “[a] state court decision is contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 73, 123 S.Ct. 1166 (citations omitted). Here, the state courts relied on Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), in determining that Arnold did not unambiguously invoke his right to silence. Even though Davis deals with invoking the right to counsel, the government posits that it should extend to cases involving the right to silence because there appears to be no Supreme Court decision directly on point regarding the right to silence. Although the Ninth Circuit left this question open in Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996), several of our sister circuits have extended Davis to cases involving the right" }, { "docid": "15885729", "title": "", "text": "Davis addressed the question of the need for clarity in a suspect’s invocation of the right to counsel, rather than the right to remain silent implicated in this case. However, every circuit that has directly addressed the issue “has concluded that Davis applies to both components of Miranda: the right to counsel and the right to remain silent.” Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir.1999) (collecting cases). This circuit, joining the Ninth and the Second Circuits, has heretofore left the issue open. Id. at 239 (“[W]e acknowledge that Davis does not ‘authoritatively’ answer the question in the narrow, technical sense of that term.”). Given the habeas context in which James raises the challenge to the treatment of his right to remain silent by the police and the state courts, we leave open again the issue of the applicability of Davis to both the right to counsel and the right to remain silent. “For the purposes of habeas corpus review, we simply cannot deem unreasonable a conclusion by the Massachusetts courts [to apply right to counsel principles to a right to remain silent case] that is consistent with the approach taken by so many respected tribunals.” Id. Thus, in this ha-beas context, we view the Smith and Davis precedents as clearly established federal law applicable to our evaluation of the SJC’s decision on James’s invocation of his right to remain silent. However, in asserting that the SJC ruled contrary to Smith, James ignores the holding in Smith, which was premised on the unambiguous assertion of the right to remain silent: “We hold only that, under the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Smith, 469 U.S. at 100, 105 S.Ct. 490 (second emphasis added). In this case, the trial court found ambiguity in James’s response of “Nope” to the question, “Do you wish to make a statement at this time?” In evaluating that finding of ambiguity by the trial court, the SJC did look at the circumstances" }, { "docid": "9696626", "title": "", "text": "this determination was a question of law, and the state court’s decision unreasonably applied clearly established federal law. Namely, there would have to be some clear-cut Supreme Court rule that certain magic words automatically bring all questioning to a halt — regardless of the circumstances surrounding the interrogation. Here, neither is the case. The state court found, for better or for worse, that Anderson’s attempted invocation of his right to remain silent was ambiguous and that the officer’s following question legitimately sought clarification. Absent a bright-line rule from the Supreme Court, the state-court conclusion is a reasonable determination of the facts. Right to Counsel Anderson also contends that he validly invoked his right to counsel and did not subsequently waive this right prior to the confession. Once Anderson stated “I’d like to have an attorney present,” the interrogating officers stopped the interrogation and turned the tape recorder off. However, Anderson unilaterally continued the conversation and asked what was going to happen to him. Accordingly, the interrogating officers were not prohibited from further questioning. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (holding that the question, “Well, what is going to happen to me?” is enough to “initiate” conversation after requesting a lawyer). In response to the officers’ statements that they could not talk to him, Anderson clarified that he “was just jokin[g]” and stated “I don’t want an attorney. I’ve changed my mind.” Therefore, Anderson validly waived his right to counsel. See Id. at 1046, 103 S.Ct. 2830. Coercion Claims Anderson next argues that the interrogating officers coerced his confession because they withheld basic needs, such as cigarettes and warm clothing, until he agreed to talk, exploited his mental condition brought on by chronic drug use, threatened him with the death penalty and ignored his requests to remain silent. The record does not support a finding of an involuntary confession. See United States v. Coleman, 208 F.3d 786, 791 (9th Cir.2000) (heroin withdrawal and physical discomfort not enough to establish involuntariness of confession); United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988)" }, { "docid": "4491518", "title": "", "text": "an implied promise, rooted in the Constitution, that 'silence will carry no penalty.' \" Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (quoting Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)); South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (explaining that Doyle rests on “the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial”). . We have left open the question of whether the rule in Davis, which involved the invocation of the right to counsel, applies equally to the invocation of the right to silence. See Soliz, 129 F.3d at 504 n. 3; Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996). . Even on the question that the prior courts mistakenly focused on — Did the \"no comment\" responses unequivocally invoke Miranda rights? — the courts’ determinations are objectively unreasonable. Comparing this case to Davis and United States v. Nordling, 804 F.2d 1466 (9th Cir.1986), the prior courts took the phrase \"no comment\" from its context and considered whether, in the abstract, \"no comment” is unambiguous. But we cannot ignore Arnold’s first statement, and we do not encounter “no comment\" in the abstract, divorced from any context. This case is therefore unlike Davis or Nordling. In those cases, the suspects being interrogated made no unambiguous statement like Arnold's statement that he didn’t want to talk on tape. . While the point does not determine whether the error was harmless, we do not accept the government’s characterization of the evidence against Arnold as \"compelling” or \"devastating.” CALLAHAN, Circuit Judge, dissenting: I respectfully dissent. The state courts did not unreasonably apply clearly established federal law. “[C]learly established Federal law under [28 U.S.C. § 2254(d)(1) ] is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In" }, { "docid": "1563706", "title": "", "text": "104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the petitioner’s due process claim rested on a factual predicate that was not amenable to conventional Sixth Amendment analysis, such as the circumstances presented in Crane or in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), we would not hesitate to consider this claim separately. Here, however, the due process claim relies entirely on the factual predicate of the petitioner’s Sixth Amendment claim. Because there is a virtually complete overlap between the Sixth Amendment and due process claims, we need only discuss the former. . The Federal Rules of Appellate Procedure authorize COA determinations to be made by two, or even one, circuit judges. See Fed. R.App. P. 22(b)(2) (stating that COA requests addressed to the court of appeals \"may be considered by a circuit judge or judges, as the court prescribes”). Some courts of appeals have exercised that authority. See, e.g., In re Certificates of Appealability, 106 F.3d at 1307. This circuit has opted, at least for the time being, to commit all such determinations to three-judge panels. . Although the SJC did not cite to Davis, its reference to the “ambiguous” nature of the petitioner’s assertion of his Fifth Amendment rights, see Bui I, 419 Mass, at 397 n. 4, 645 N.E.2d at 693 n. 4, meshes neatly with the district court's rationale. . Two courts, recognizing a possible theoretical distinction between the right to counsel and the right to remain silent, have left the issue open. See Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.1996). . There are limits to this assumption. To the extent that the petitioner calumnizes the district court’s reliance on Davis as improperly importing Sixth Amendment principles into the Fifth Amendment context, he is barking up the wrong tree. Davis did not deal with the Sixth Amendment, but, rather, with the Fifth Amendment right to counsel articulated in Miranda. See Davis, 512 U.S. at 457-58, 114 S.Ct. 2350. . To be sure, the petitioner argues that the trial court’s" }, { "docid": "23301505", "title": "", "text": "Court concluded “that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored,”’ Mosley, 423 U.S. at 104, 96 S.Ct. 321. In this case, the police neither violated Miranda nor Mosley because Burket never invoked his right to remain silent. The Supreme Court has held that if a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602. In this case, it is not clear that Burket wished to remain silent. Indeed, considering the circumstances as a whole, Detective Hoffman had every reason to believe that Burket wished to talk. The Supreme Court’s most recent exposition on ambiguous invocations was in the context of whether a suspect invoked his Sixth Amendment right to counsel. In Davis, the Court held that the determination of whether a suspect invoked his right to counsel is an objective one. See. 512 U.S. at 459, 114 S.Ct. 2350. The question is whether the suspect “articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. Other circuits have held that this “objective inquiry” into ambiguity is applicable to invocations of the right to remain silent. See, e.g., Medina, 59 F.3d at 1100 (applying Davis’s objective inquiry to determine whether suspect’s invocation of the right to remain silent was ambiguous or equivocal); United States v. Banks, 78 F.3d 1190, 1197-98 (7th Cir.) (same), vacated on other grounds, 519 U.S. 990, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996); cf. Barnes v. Johnson, 160 F.3d 218, 224-25 (5th Cir.1998) (in light of Davis, trial court’s admission of petitioner’s fourth videotaped statement following his ambiguous statement invoking the right to remain silent was not contrary to clearly established federal law as determined by the Supreme Court), cert, denied, — U.S. -, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999); United States v." }, { "docid": "12106196", "title": "", "text": "withheld judgment regarding the application of Davis to the invocation of the right to remain silent, held that it could not “deem unreasonable a conclusion by the [state] courts ... that [was] consistent with the approach taken by so many respected tribunals.’ ” James v. Marshall, 322 F.3d 103, 108 (1st Cir.2003) (quoting Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir.1999)). We, likewise, could not conclude that application of the Davis rule to an invocation of the right to remain silent is contrary to or an unreasonable application of Supreme Court precedent where the Supreme Court has neither “squarely addresse[d]” when an ambiguous statement amounts to an invocation of the right to remain silent nor refused to extend the Davis rule to an invocation of the right to remain silent. Wright v. Van Patten, — U.S.-, 128 S.Ct. 743, 746, 169 L.Ed.2d 583 (2008). In this case, although the state appellate court never expressly applied Davis’s objective inquiry in analyzing DeWeaver’s request to return to jail, its reasoning and result are not contrary to Supreme Court precedent. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (noting that a state-court decision is not contrary to Supreme Court precedent for failure to cite such decisions, “so long as neither the reasoning nor the result of the state-court decision contradicts [it]”). The state appellate court concluded that asking to be taken back to jail “did not evidence a refusal to talk further.” People v. DeWeaver, No. A091078, 2001 WL 1515830, at *5 (Cal.Ct. App. Nov.28, 2001). In so doing, it considered that DeWeaver said nothing about ending the interrogation or not wanting to talk, that the officers interrogating DeW-eaver knew that he knew how to invoke his right to silence because he had done so a few days earlier, and Sergeant Joyner’s testimony that he did not understand DeWeaver’s request to be an invocation. Id. The state appellate court could properly conclude from these facts that a reasonable officer in the circumstances would not have understood DeWeaver’s request to be an invocation of the right" } ]

[ { "docid": "22325022", "title": "", "text": "Marshall puts it, “whether the Constitution prohibits a union and a local school board from developing a collective-bargaining agreement that apportions layoffs between two racially determined groups as a means of preserving the effects of an affirmative hiring policy.” Post, at 300 (dissenting). There is no issue here of the interpretation and application of Title VII of the Civil Rights Act of 1964; accordingly, we have only the constitutional issue to resolve. The Equal Protection Clause standard applicable to racial classifications that work to the disadvantage of “non-minorities” has been articulated in various ways. See, e. g., post, at 301-302 (Marshall, J., dissenting). Justice Pow- ELL now would require that: (1) the racial classification be justified by a “‘compelling governmental interest/” and (2) the means chosen by the State to effectuate its purpose be “narrowly tailored.” Ante, at 274. This standard reflects the belief, apparently held by all Members of this Court, that racial classifications of any sort must be subjected to “strict scrutiny,” however defined. See, e. g., Fullilove v. Klutznick, 448 U. S. 448, 491 (1980) (opinion of Burger, C. J., joined by White, J.) (“Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees”); id., at 537 (Stevens, J., dissenting) (“Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification”); University of California Regents v. Bakke, 438 U. S. 265, 291 (1978) (opinion of Powell, J., joined by White, J.) (“Racial,and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”); id., at 361-362 (opinion of Brennan, White, Marshall, and Blackmun, JJ.) (“[0]ur review under the Fourteenth Amendment should be strict — not ‘“strict” in theory and fatal in fact/ because it is stigma that causes fatality — but strict and searching nonetheless”). Justices Marshall, Brennan-, and Blackmun, however, seem to adhere to the formulation of the “strict” standard that they authored, with Justice White, in Bakke: “remedial use of race is permissible if it serves" } ]

[ { "docid": "8637158", "title": "", "text": "an injury in fact because they claim that they are being forced to compete in a race-based system. . That Student Doe 4 chose to attend Harriton does not render his claim moot because Student Doe 4 alleges the same injury as the other students — being assigned to a school under a discriminatory race-based system. . See also Seattle, 551 U.S. at 720, 127 S.Ct. 2738 (K-12 education) (\"It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.” (citing Johnson v. California, 543 U.S. 499, 505-06, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); Grutter, 539 U.S. at 326, 123 S.Ct. 2325; Adarand, 515 U.S. at 224, 115 S.Ct. 2097)); Gratz, 539 U.S. at 271, 123 S.Ct. 2411 (university admissions) (\"It is by now well established that 'all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.’ ” (quoting Adarand, 515 U.S. at 224, 115 S.Ct. 2097)); Johnson, 543 U.S. at 506, 125 S.Ct. 1141 (“We have held that “all racial classifications [imposed by government] ... must be analyzed by a reviewing court under strict scrutiny.” ” (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097) (alteration in original)); Adarand, 515 U.S. at 228, 115 S.Ct. 2097 (holding that \"all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); Pars. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (\"A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” (citing Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964))); Bakke, 438 U.S. at 291, 98 S.Ct. 2733 (university admissions) (\"Racial and ethnic classifications ... are subject to stringent examination without regard to [the discreteness and insularity of the persons being classified].”). . See also Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555 (\"when" }, { "docid": "12876960", "title": "", "text": "governmental purpose. Johnson v. Cohen, 836 F.2d 798, 805 n. 9 (3d Cir.1987). Where a “quasi-suspect” or “suspect” classification is at issue, however, the challenged action must survive “intermediate scrutiny” or “strict scrutiny.” Intermediate scrutiny (applicable to quasi-suspect classes like gender and illegitimacy) requires that a classification “be substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). In contrast, strict scrutiny (applicable to suspect classes like race and nationality) is an even more demanding standard, which requires the classification be “narrowly tailored ... [to] further [a] compelling governmental inter-esé ].” Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). Strict and intermediate scrutiny (which we collectively refer to as “heightened scrutiny” to distinguish them from the far less demanding rational-basis review) in effect set up a presumption of invalidity that the defendant must rebut. Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection Clause. See Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 Fla. L.Rev. 909, 919 (2013); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L.Rev. 1753, 1783 (1996). We therefore confront a question of first impression in this Circuit. Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race. United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (naming “race” and “religion” as examples of “unjustifiable standardfs]” for a “decision whether to prosecute” (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962))); Burlington N.R.R. v. Ford, 504 U.S. 648, 651, 112 S.Ct. 2184, 119 L.Ed.2d 432 (1992) (referring to “race” and “religion” as “classifications] along suspect lines”); Friedman" }, { "docid": "15327045", "title": "", "text": "an institution of higher education”). Grutter and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), confirmed this. See Fisher, 133 S.Ct. at 2418. “The diversity that furthers a compelling [governmental] interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U.S. at 315, 98 S.Ct. 2733. Thus, diversity cannot be defined by a “specified percentage of a particular group,” id. at 307, 123 S.Ct. 2325, because such a definition would be “patently unconstitutional racial balancing,” Grutter, 539 U.S. at 330, 123 S.Ct. 2325. In applying strict scrutiny, it is proper for courts to defer to a university’s decision to pursue the compelling governmental interest of diversity based on its “educational judgment that such diversity is essential to its educational mission.” Id. at 328, 123 S.Ct. 2325. But, deference to the University is appropriate on this point, and this point alone. Fisher, 133 S.Ct. at 2421. Once a university has decided to pursue this compelling governmental interest, it must prove that the means chosen “to attain diversity are narrowly tailored to that goal.” Fisher, 133 S.Ct. at 2420. In this, the strict scrutiny test takes the familiar form of a “means-to-ends” analysis: The compelling governmental interest is the ends, and the government program or law — here, the University’s race-conscious admissions program — is the means. Strict scrutiny places the burden of proving narrow tailoring firmly with the government. See Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). And, furthermore, narrow tailoring must be established “with clarity.” Fisher, 133 S.Ct. at 2418. Before this case, the Supreme Court had issued only three major decisions addressing affirmative action in higher education admissions: Bakke, Gratz, and Grutter. In Fisher, the Court made clear that this line of cases does not stand apart from “broader equal protection jurisprudence.” Id. at 2418. Rather, “the analysis and level of scrutiny applied to determine the validity of [a racial classification] do not vary simply because the objective appears acceptable....” Id. at" }, { "docid": "19447278", "title": "", "text": "and characteristics of which racial or ethnic origin is but a single though important element.\" Bakke, 438 U.S., at 315, 98 S.Ct. 2733 (separate opinion). In Gratz, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257, and Grutter, supra, the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of \"student body diversity is a compelling state interest that can justify the use of race in university admissions.\" Id., at 325, 123 S.Ct. 2325. As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. \"Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.\" Gratz, supra, at 275, 123 S.Ct. 2411.\"To be narrowly tailored, a race-conscious admissions program cannot use a quota system,\" Grutter, 539 U.S., at 334, 123 S.Ct. 2325, but instead must \"remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application,\" id., at 337, 123 S.Ct. 2325. Strict scrutiny requires the university to demonstrate with clarity that its \"purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose.\" Bakke, 438 U.S., at 305, 98 S.Ct. 2733 (opinion of Powell, J.) (internal quotation marks omitted). While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court's broader equal protection jurisprudence which applies in this context. \"Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,\" Rice v. Cayetano, 528 U.S. 495, 517, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (internal quotation marks omitted)," }, { "docid": "14985997", "title": "", "text": "through race-neutral means, including informational and instructional programs targeted toward all small businesses. Id. § 26.51(a)-(b). A State must use race-conscious contract goals to achieve any portion of its DBE utilization requirement that cannot be attained through these race-neutral means. Id. § 26.51(d). Even when race-conscious measures are necessary, however, the regulations do not require that DBE utilization goals be included in every contract— or that they be set at the same level in every contract in which they are used — as long as the overall effect is to obtain that portion of the requisite DBE participation that cannot be achieved through race-neutral means. Id. § 26.51(e)(2). Prime contractors to whom a State awards federally funded’ transportation contracts must undertake good faith efforts to satisfy a contract’s DBE utilization goal by allocating the designated percentage of funds to DBE firms. Id. § 26.53(a). States are prohibited from instituting rigid quotas that do not account for a prime contractor’s good faith efforts to subcontract work to DBEs. Id. § 26.43(a). III “[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand Constructors, Inc. v. Peña (“Adarand III”), 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). “The burden of justifying different treatment by ethnicity or sex is always on the government.” Monterey Mech. Co. v. Wilson, 125 F.3d 702, 713 (9th Cir.1997); see also Johnson v. California, — U.S. -, - n. 1, 125 S.Ct. 1141, 1146 n. 1, 160 L.Ed.2d 949 (2005) (“We put the burden on state actors to demonstrate that their race-based policies are justified.”); Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (“To withstand our strict scrutiny analysis, [the University of Michigan] must demonstrate that [its] use of race in its current admission program employs narrowly tailored measures that further compelling governmental interests.” (internal quotation marks omitted)). In addressing Western States’ facial challenge, we must therefore" }, { "docid": "15919847", "title": "", "text": "in part, on his race. Similarly, in day labor and small-scale operations, MCSO undercover officers routinely directed that vehicles that picked up Hispanic day laborers be targeted for pretextual traffic enforcement. And, pursuant to MCSO policy and practice in other operations, MCSO deputies, in determining which vehicles they will stop for traffic enforcement purposes, emphasize those vehicles that have Hispanic occupants. As the supervising sergeants noted, according to their understanding, it would be impossible for a deputy to commit racial profiling if he has a legitimate reason to pull over a vehicle. This is clearly a limited and incorrect understanding. Further, having pulled over a vehicle with Hispanic occupants, MCSO deputies are further authorized by policy, operation plans, and continuing practice to consider the race of the occupants in deciding which ones they will investigate for immigration-related violations of state law. The fact that Mr. Ortega-Melendres’s vehicle was stopped and his identity investigated, based at least in part on racial considerations, makes Mr. Ortega-Melendres an adequate representative for persons in the class that were subjected to similar policies or practices. Any government policy or practice that discriminates based upon race is subject to strict judicial scrutiny. In such cases, the racial distinction must be narrowly tailored to serve a compelling governmental interest. See Parents Involved, 551 U.S. at 720, 127 S.Ct. 2738 (holding that “when the government distributes burdens ... on the basis of individual racial classifications that action is reviewed under strict scrutiny.”); Gratz v. Bolling er, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (holding that “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.”); Grutter v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (same). Government decisions are further subject to equal protection review when race is merely one factor that motivates action, even if it is not the predominant factor. A government policy is presumed to be racially discriminatory when it is “based in part on reports that referred to explicit racial characteristics.” Flores v. Pierce, 617 F.2d 1386, 1389" }, { "docid": "8637157", "title": "", "text": "this as including \"a particular geographic area [to be redistricted] due to its racial makeup.\" (App. at A67.) . In Allen, the Supreme Court held that the plaintiffs did not have standing in a suit against the Internal Revenue Service for its grant of tax exempt status to racially exclusive private schools, because, in part, the plaintiffs did not allege \"that their children had ever applied or would ever apply for admission to any private school.” Allen, 468 U.S. at 746, 104 S.Ct. 3315. Plaintiffs maintained that they had \"no interest whatever in enrolling their children in a private school.” Wright v. Regan, 656 F.2d 820, 827 (D.C.Cir.1981). Student Doe would be analogous to Allen if Students Doe had alleged that they did not intend to enroll in either public high school in the District. Students Doe, however, live within the District and attend the District’s elementary, middle, or high schools. Thus, Allen is not controlling even though Students Doe have not alleged that they will attend LMHS if given the choice. Students Doe allege an injury in fact because they claim that they are being forced to compete in a race-based system. . That Student Doe 4 chose to attend Harriton does not render his claim moot because Student Doe 4 alleges the same injury as the other students — being assigned to a school under a discriminatory race-based system. . See also Seattle, 551 U.S. at 720, 127 S.Ct. 2738 (K-12 education) (\"It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.” (citing Johnson v. California, 543 U.S. 499, 505-06, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); Grutter, 539 U.S. at 326, 123 S.Ct. 2325; Adarand, 515 U.S. at 224, 115 S.Ct. 2097)); Gratz, 539 U.S. at 271, 123 S.Ct. 2411 (university admissions) (\"It is by now well established that 'all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.’ ” (quoting Adarand, 515 U.S. at 224, 115 S.Ct. 2097)); Johnson, 543 U.S. at 506, 125 S.Ct. 1141 (“We" }, { "docid": "8637100", "title": "", "text": "the District Court issued a Memorandum on Conclusions of Law. The Court stated that the central issue in this ease is whether the District’s “targeting” of the Affected Area for redistricting to Harriton, “in part because that community has one of the highest concentrations of African-American students in the District,” violates the Equal Protection Clause or Title VI of the Civil Rights Act. (App. at A65.) In determining the appropriate level of scrutiny to apply to this equal protection challenge, the District Court concluded that Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (“Seattle”); Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003); Adarand Constructors v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1988) (“Croson”); and Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) are not controlling here. The District Court held that the level of scrutiny applied in Seattle, Grutter, Gratz, Adarand, Croson, and Johnson is inapposite here. Specifically, strict scrutiny as applied in Seattle, Grutter, Gratz, Adarand, Croson, and Johnson is not required here because each of those cases involves a policy that employs express, individual racial classifications, whereas Plan 3R does not. Plan 3R assigns students based on the neighborhood in which they reside without using individual racial classifications. The District Court noted that Plan 3R is a facially neutral redistricting plan with facially neutral guidelines, so, unlike the cases above, the action brought by Appellants does not “involve the ‘additional difficulties posed by policies that, although facially race neutral, [may] result in racially disproportionate impact and [may be] motivated by a racially discriminatory purpose.’ ” (App. at A76 (quoting Adarand, 515 U.S. at 213, 115 S.Ct. 2097).) The District Court found, however, that the reasoning of Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 97 S.Ct. 555," }, { "docid": "15327047", "title": "", "text": "2421 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 n. 9, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)). In Fisher, the Supreme Court modified the narrow tailoring calculus applied in higher education affirmative action cases. While the overarching principles from Bakke, Gratz, and Grutter — that a university can have a compelling interest in attaining the educational benefits of diversity, and that its admissions program must be narrowly tailored to serve this interest — were taken “as given,” id. at 2417-18, the Fisher Court altered the application of those principles in a critical way. Now, courts must give “no deference,” to a state actor’s assertion that its chosen “means ... to attain diversity are narrowly tailored to that goal.” Id. at 2420. In so doing, the Fisher Court embraced Justice Kennedy’s position on “deference” from Grutter. Thus, under the current principles governing review of race-conscious admissions programs, providing any deference to a state actor’s claim that its use of race is narrowly tailored is “antithetical to strict scrutiny, not consistent with it.” Grutter, 539 U.S. at 394, 123 S.Ct. 2325 (Kennedy, J., dissenting). Because the higher-education affirmative action cases do not stand apart from “broader equal protection jurisprudence,” Fisher, 133 S.Ct. at 2418, strict scrutiny must be applied with the same analytical rigor deployed in those other contexts. Put simply, there is no special form of strict scrutiny unique to higher education admissions decisions. Accordingly, we must now evaluate narrow tailoring by ensuring that “the ‘means chosen ‘fit’ the [compelling governmental interest] so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493, 109 S.Ct. 706. Narrow tailoring further requires that “the reviewing court verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” Fisher, 133 S.Ct. at 2420 (internal citations and quotations omitted). To do so, we must carefully inquire into whether the University “could achieve sufficient diversity without using racial classifications.” Id. Establishing narrow tailoring does not require the University to show" }, { "docid": "19127745", "title": "", "text": "fundamental right to marry and to have their marriages recognized. B The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (quotation and emphasis omitted). By the same token, if a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (quotation omitted). Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny. A provision subject to strict scrutiny “cannot rest upon a generalized assertion as to the classification’s relevance to its goals.” Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). “The purpose of the narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate.” Grutter, 539 U.S. at 333, 123 S.Ct. 2325 (quo tation omitted). Only “the most exact connection between justification and classification” survives. Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (quotation omitted). Appellants advance four justifications for Amendment 3. They contend it furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers — -or at least by a married mother and father — in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” 1 We will assume that the first three rationales asserted by appellants are compelling. These justifications falter, however, on" }, { "docid": "9986320", "title": "", "text": "discriminatory when it is \"based in part on reports that referred to explicit racial characteristics.” Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.1980) (emphasis added) (Kennedy, J.). In Grutter [v. Bollinger], the Supreme Court applied strict scrutiny to a policy which involved race as one factor among many even though plaintiffs expert conceded that \"race is not the predominant factor” in the policy. 539 U.S. [306, 320, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) ]; see also Arlington Heights, 429 U.S. at 263, 97 S.Ct. 555 (subjecting government action to equal protection review on \"proof that a discriminatory purpose has been a motivating factor in the decision”). Melendres, 2013 WL 2297173, at *69 (holding that the Maricopa County Sheriffs Office violated the Equal Protection Clause through its use of Hispanic ancestry or race as a factor in forming reasonable suspicion of violating immigration laws, despite express policy against racial profiling). . Ferrill v. Parker Grp., Inc., 168 F.3d 468, 473 & n. 7 (11th Cir.1999). . The NYPD’s use of local crime suspect data to target racially defined groups for stops is not only a form of racial profiling, it is also a deeply flawed way of identifying the criminal population. See supra Part IV.B.3.b. . Plaintiffs have presented other circumstantial evidence of discriminatory intent, such as the NYPD’s longstanding indifference to evidence of racial discrimination in stops, discussed at greater length below. See infra Part V.B.2 (deliberate indifference); PL Mem. at 20-23. . \"It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. I, 551 U.S. 701, 720, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007). In order to satisfy strict scrutiny, a racial classification must be \" 'narrowly tailored' to achieve a 'compelling' government interest.” Id. (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097). . See 4/10 Tr. at 3034 (Chief Esposito acknowledging that \"the right people” are young black and Hispanic youths 14 to 20 for whom there is reasonable" }, { "docid": "15327048", "title": "", "text": "Grutter, 539 U.S. at 394, 123 S.Ct. 2325 (Kennedy, J., dissenting). Because the higher-education affirmative action cases do not stand apart from “broader equal protection jurisprudence,” Fisher, 133 S.Ct. at 2418, strict scrutiny must be applied with the same analytical rigor deployed in those other contexts. Put simply, there is no special form of strict scrutiny unique to higher education admissions decisions. Accordingly, we must now evaluate narrow tailoring by ensuring that “the ‘means chosen ‘fit’ the [compelling governmental interest] so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493, 109 S.Ct. 706. Narrow tailoring further requires that “the reviewing court verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” Fisher, 133 S.Ct. at 2420 (internal citations and quotations omitted). To do so, we must carefully inquire into whether the University “could achieve sufficient diversity without using racial classifications.” Id. Establishing narrow tailoring does not require the University to show that it exhausted every possible race-neutral option, but it must meet its “ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Id. Of course, all of the above must be underscored by the principle that using racial classifications is permissible only as a “last resort to achieve a compelling interest.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 790, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (Kennedy, J, concurring). Ill Here, the University has framed its goal as obtaining a “critical mass” of campus diversity. To uphold the use of race under strict scrutiny, courts must find narrow tailoring through a close “fit” between this goal and the admissions program’s consideration of race. Accordingly, the controlling question becomes the definition of “critical mass” — the University’s stated goal. In order for us to determine whether its use of racial classifications in the admissions program is narrowly tailored to its goal, the University must explain its goal, and do so “with clarity.”" }, { "docid": "11233830", "title": "", "text": "establishing a genuine fact issue for trial and may not rest upon the mere allegations or denials of its pleadings. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 256-257, 106 S.Ct. 2505. However, “[njeither ‘conclusory allegations’ nor ‘unsubstantiated assertions’ will satisfy the non-movant’s burden.” Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996). The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 2. Consequently, the “government may treat people differently because of their race only for the most compelling reasons.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Thus, as the Supreme Court has held, “all racial classifications imposed by govern ment ‘must be analyzed by a reviewing court under strict scrutiny.’ ” Grutter v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097). To survive strict scrutiny, the racial classification must be “narrowly tailored to further compelling governmental interests.” Grutter, 539 U.S. at 326, 123 S.Ct. 2325. II. Grutter v. Bollinger In 2003, the Supreme Court squarely addressed and decided the question of “[wjhether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities.” Id. at 322, 123 S.Ct. 2325. The Supreme Court answered the question in the affirmative, finding that the University of Michigan Law School (the “Law School”) had “a compelling interest in attaining a diverse student body.” Id. at 328, 123 S.Ct. 2325. The Supreme Court also found the Law School’s admissions program to be narrowly tailored despite the existence of race-neutral alternatives, including “percentage plans” similar to Texas’ Top Ten Percent law. Id. at 339-40, 123 S.Ct. 2325. As the landmark case regarding the consideration of race as part of college admissions, the facts of Grutter deserve particular" }, { "docid": "8637163", "title": "", "text": "material to the result of Seattle. As has occurred on other occasions with some other non-binding rationales, a future plurality or majority of the Court could adopt Justice Kennedy’s rationale for race-conscious, non-discriminatory school assignments to give it precedential effect. See Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (\"today we endorse Justice Powell’s view [from his Baldee concurrence] that student body diversity is a compelling state interest that can justify the use of race in university admissions”). Because the Supreme Court has not yet given its imprimatur to the propositions in Justice Kennedy’s Seattle concurrence, it is not yet the law of the Supreme Court or binding on this Court. . The standard of review \"is not dependent on the race of those burdened or benefited by a particular classification.” Croson, 488 U.S. at 494, 109 S.Ct. 706 (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 279-80, 106 S.Ct. 1842, 90 L.Ed.2d 260 (plurality opinion); id. at 285-86, 106 S.Ct. 1842 (O’Connor, J., concurring in part and concurring in the judgment)). . The District Court frequently distinguished Plan 3R from other equal protection cases because it does not make individual racial classifications. For equal protection purposes, however, the key difference between Plan 3R and the policies at issue in other equal protection cases is not whether Plan 3R makes individual racial classifications as opposed to group or neighborhood racial classifications; it is whether Plan 3R makes racial classifications or does not. Our holding addresses whether Plan 3R contains any racial classification or does not. There is no precedent in this Court or the Supreme Court for holding that whether strict scrutiny is applied in equal protection challenges alleging racial discrimination in education admissions or assignments turns on whether a policy's racial classification is applied by group or by individual. . Seattle, 551 U.S. at 711-12, 716, 127 S.Ct. 2738 (the Supreme Court analyzed the policies of two different school districts, one in Seattle, Washington and the other in Jefferson County, Kentucky: Seattle School District No. l’s assignment policy considered race as" }, { "docid": "3089822", "title": "", "text": "judged by the color of their skin.” Shaw, 509 U.S. at 657, 113 S.Ct. 2816. It is uncontested by the parties that New York has identified a compelling governmental interest in remedying discrimination against Hispanics and that it has enacted a flexible minority contractor program that is narrowly tailored to further that interest. As the plaintiffs’ challenge demonstrates, however, racial classifications may pass strict scrutiny and still appear arbitrary or unfair to persons classified as being within or without the chosen category. Whether or not the government’s use of race ultimately survives strict scrutiny review, “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Adarand, 515 U.S. at 229-30, 115 S.Ct. 2097. “The application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury.” Id. at 230, 115 S.Ct. 2097. Strict scrutiny is applied in order to determine whether the harm stemming from a particular decision to use racial classifications is justified. But the fact that a particular governmental decision to use classifications based on race or national origin in a particular context passes strict scrutiny does not relieve those categories of their possible arbitrariness and unreliability as bases for classifying specific individuals. We therefore think that this version of the plaintiffs’ argument misconceives the purpose behind the strict scrutiny test. “[S]trict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental de-cisionmaker for the use of race in that particular context.” Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). Once- it has been established that the government is justified in resorting to the “highly suspect tool” of racial or national origin classifications, strict scrutiny has little utility in supervising the government’s definition of its chosen categories. The purpose of the test is to ensure that the government’s choice to use racial classifications is justified, not to ensure that the" }, { "docid": "12876959", "title": "", "text": "in part) (“[T]here can be intentional discrimination without an invidious motive.”). Thus, even if NYPD officers were subjectively motivated by a legitimate law-enforcement purpose (no matter how sincere), they’ve intentionally discriminated if they wouldn’t have surveilled Plaintiffs had they not been Muslim. 2. Is. the Alleged Discrimination Nonetheless Legally Justified? Once a plaintiff demonstrates treatment different from others with whom he or she is similarly situated and that the unequal treatment is the result of intentional discrimination, “the adequacy of the reasons for that discrimination are ... separately assessed at equal protection’s second step” under the appropriate standard of review. SECSYS, LLC v. Vigil, 666 F.3d 678, 689 (10th Cir.2012). To apply this traditional legal framework to the facts of this case, we must determine the appropriate standard of review (i.e., rational basis, intermediate scrutiny, or strict scrutiny) and then ask whether it is met. i. Level of Scrutiny At a minimum, intentional discrimination against any ' “identifiable group” is subject to rational-basis review, which requires the classification to be rationally related to a legitimate governmental purpose. Johnson v. Cohen, 836 F.2d 798, 805 n. 9 (3d Cir.1987). Where a “quasi-suspect” or “suspect” classification is at issue, however, the challenged action must survive “intermediate scrutiny” or “strict scrutiny.” Intermediate scrutiny (applicable to quasi-suspect classes like gender and illegitimacy) requires that a classification “be substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). In contrast, strict scrutiny (applicable to suspect classes like race and nationality) is an even more demanding standard, which requires the classification be “narrowly tailored ... [to] further [a] compelling governmental inter-esé ].” Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). Strict and intermediate scrutiny (which we collectively refer to as “heightened scrutiny” to distinguish them from the far less demanding rational-basis review) in effect set up a presumption of invalidity that the defendant must rebut. Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection" }, { "docid": "15327044", "title": "", "text": "ancestry are by their very nature odious to a free people.” Fisher, 133 S.Ct. at 2418 (quoting Rice v. Cayetano, 528 U.S. 495, 517, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000)). When a state university makes race-conscious admissions decisions, those decisions are governed by the Equal Protection Clause, even though they may appear well-intended. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 297, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.). Simply put, the Constitution does not treat race-conscious admissions programs differently because their stated aim is to help, not to harm. Under strict scrutiny, a university’s use of racial classifications is constitutional only if necessary and narrowly tailored to further a compelling governmental interest. See Grutter, 539 U.S. at 326, 123 S.Ct. 2325. It is well-established that there is a compelling governmental interest in obtaining the educational benefits of a diverse student body. See Bakke, 438 U.S. at 311-12, 98 S.Ct. 2733 (holding that the “attainment of a diverse student body” is a “constitutionally permissible goal for an institution of higher education”). Grutter and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), confirmed this. See Fisher, 133 S.Ct. at 2418. “The diversity that furthers a compelling [governmental] interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U.S. at 315, 98 S.Ct. 2733. Thus, diversity cannot be defined by a “specified percentage of a particular group,” id. at 307, 123 S.Ct. 2325, because such a definition would be “patently unconstitutional racial balancing,” Grutter, 539 U.S. at 330, 123 S.Ct. 2325. In applying strict scrutiny, it is proper for courts to defer to a university’s decision to pursue the compelling governmental interest of diversity based on its “educational judgment that such diversity is essential to its educational mission.” Id. at 328, 123 S.Ct. 2325. But, deference to the University is appropriate on this point, and this point alone. Fisher, 133 S.Ct. at 2421. Once a university has decided to pursue this compelling governmental" }, { "docid": "19447291", "title": "", "text": "university admissions. Tr. of Oral Arg. 8-9. I therefore join the Court's opinion in full. Justice THOMAS, concurring. I join the Court's opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin's (University) use of racial discrimination in admissions decisions. Ante, at 2415. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause. I A The Fourteenth Amendment provides that no State shall \"deny to any person ... the equal protection of the laws.\" The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. \"At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.\" Missouri v. Jenkins, 515 U.S. 70, 120-121, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (THOMAS, J., concurring). \"It is for this reason that we must subject all racial classifications to the strictest of scrutiny.\" Id., at 121, 115 S.Ct. 2038. Under strict scrutiny, all racial classifications are categorically prohibited unless they are \" 'necessary to further a compelling governmental interest' \" and \"narrowly tailored to that end.\" Johnson v. California, 543 U.S. 499, 514, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (quoting Grutter, supra, at 327, 123 S.Ct. 2325). This most exacting standard \"has proven automatically fatal\" in almost every case. Jenkins, supra, at 121, 115 S.Ct. 2038 (THOMAS, J., concurring). And rightly so. \"Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that [racial] classifications ultimately have a destructive impact on the individual and our society.\" Adarand Constructors, Inc. v. Penã, 515 U.S. 200, 240, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (THOMAS, J., concurring in part and concurring in judgment). \"The Constitution abhors classifications based on race\" because \"every time the government places citizens on racial" }, { "docid": "19447283", "title": "", "text": "supra, at 307, 98 S.Ct. 2733 (opinion of Powell, J.). \"That would amount to outright racial balancing, which is patently unconstitutional.\" Grutter, supra, at 330, 123 S.Ct. 2325.\"Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.' \" Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 732, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007). Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that \"[t]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose.\" 539 U.S., at 333, 123 S.Ct. 2325 (internal quotation marks omitted). True, a court can take account of a university's experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes \"ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.\" Id ., at 337, 123 S.Ct. 2325. Narrow tailoring also requires that the reviewing court verify that it is \"necessary\" for a university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305, 98 S.Ct. 2733 This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although \"[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,\" strict scrutiny does require a court to examine with care, and not defer to, a university's \"serious, good faith consideration of workable race-neutral alternatives.\" See Grutter, 539 U.S., at" }, { "docid": "15919848", "title": "", "text": "to similar policies or practices. Any government policy or practice that discriminates based upon race is subject to strict judicial scrutiny. In such cases, the racial distinction must be narrowly tailored to serve a compelling governmental interest. See Parents Involved, 551 U.S. at 720, 127 S.Ct. 2738 (holding that “when the government distributes burdens ... on the basis of individual racial classifications that action is reviewed under strict scrutiny.”); Gratz v. Bolling er, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (holding that “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.”); Grutter v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (same). Government decisions are further subject to equal protection review when race is merely one factor that motivates action, even if it is not the predominant factor. A government policy is presumed to be racially discriminatory when it is “based in part on reports that referred to explicit racial characteristics.” Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.1980) (emphasis added) (Kennedy, J.). In Grutter, the Supreme Court applied strict scrutiny to a policy which involved race as one factor among many even though plaintiffs expert conceded that “race is not the predominant factor” in the policy. 539 U.S. at 320,: 123 S.Ct. 2325; see also Arlington Heights, 429 U.S. at 263, 97 S.Ct. 555 (subjecting government action to equal protection review on “proof that a discriminatory purpose has been a motivating factor in the decision”). The enforcement of immigration-related civil or criminal offenses amounts to a compelling governmental interest. Yet Defendants have not argued that this policy is narrowly tailored to meet that interest. Given the facts surrounding the presence of Hispanics in Maricopa County, the MCSO could not successfully do so.' The great majority of Hispanic persons in the county are citizens, legal residents of the United States, or are otherwise authorized to be here. Thus the fact that a person is Hispanic and is in Maricopa County is not a narrowly-tailored basis on which one could conclude that the" } ]

[ { "docid": "876298", "title": "", "text": "Tenn.App. 1, 298 S.W.2d 747 (1956); T.C.A. § 69-101 and the cases decided under it; 31 Tenn.L.Rev. 450, 454 (1964). This Court finds that while the Florida contract is broad, it is duly limited as to time and area and is not invalid or violative of Tennessee public policy. Discussion of the same legal principles is involved under both the issue of Tennessee public policy on restrictive covenants, and the issue of the validity of such a restrictive covenant under a cause of action for inducement to breach. Therefore, for the purpose of greater clarity, the Court’s discussion of the reasonableness of the restrictive covenant will be reserved until the inducement to breach discussion. INDUCEMENT TO BREACH EMPLOYMENT CONTRACT Inducement to breach a contract, while it must be based upon a valid contract, is an action sounding in tort. Finchum Steel Erection Corp. v. Local Union 384, 202 Tenn. 580, 308 S.W.2d 381 (1957); Prosser, The Law of Torts, § 123 (3rd ed. 1964). The applicable Tennessee statute, T.C.A. § 47-15-113, is but a statutory enactment of the common law tort action, expressly setting treble damages in lieu of punitive damages. Swift v. Beaty, 39 Tenn. App. 292, 282 S.W.2d 655 (1954). Tennessee follows the traditional conflicts of law rule, the law of the place of the wrong governs an injury sounding in tort, lex loci delicti. Kennard v. Illinois Central R.R. Co., 177 Tenn. 311, 148 S.W.2d 1017 (1941); Franklin v. Wills, 217 F.2d 899 (6th Cir. 1954); Restatement, Conflict of Laws, § 378. Where there is a multi-state tort, the place of the wrong is “the state where the last event necessary to make an actor liable for an alleged tort takes place.” Restatement, Conflict of Laws, § 377. In the present case, the last event necessary to establish the liability of the defendants was at that time and place where the defendants formed Jamul Safety Products, Inc., and employed Herbert Jamul. The inducement to breach the covenant of his employment contract was complete where Jamul was employed by defendants, resulting in the breach of his covenant with" } ]

[ { "docid": "15503345", "title": "", "text": "or passengers to wear them. In 1977, former section 930 was renamed T.C.A. § 55-9-214. Section 214 was a verbatim recodification of the portion of former § 930 that dealt with the relevance of failure to wear safety belts. The current version of Tennessee’s bar against use of the seat belt defense was enacted in 1986 as part of the Tennessee Mandatory Safety Belt Act (the “Act”), T.C.A. §§ 55-9-601 — 610. Section 604 deleted any reference to mitigatory damages and instead incorporated a broad prohibition against admitting into evidence the use of failure to wear a seat belt in any civil action. The legislative intent behind the statutory revision of § 604 is sparse. Perhaps the most noteworthy moment in the shaping of § 604 came when the Tennessee legislature, after a back and forth battle, eventually rejected an attempt by the House of Representatives to weaken the language of the original version of the statute, then codified as § 214. The House of Representatives initially passed an amendment that would have entirely shifted the focus of former § 214. Section 3(d) of House Bill 533 introduced on February 11, 1985, provided: Failure to comply with subsections (b) or (c) of this section shall be admissible to mitigate damages with respect to any person who is involved in a motor vehicle accident while violating the requirements of these subsections and who seeks in any subsequent litigation to recover damages for injuries resulting from the accident. The House passed a bill in 1985 containing that language. The origin of the proposed statutory language in House Bill 533 is significant for the purposes of this case. The language was adopted nearly verbatim from the federal regulation specifying minimum criteria for state mandatory safety belt usage laws. 49 C.F.R. § 571.208, S4.1.5.2(c). One of the three minimum criteria called for by that federal regulation is: a provision specifying that the violation of the belt usage requirement may be used to mitigate damages with respect to any person who is involved in a passenger car accident while violating the belt usage requirement and" }, { "docid": "15503368", "title": "", "text": "facts of this case. Ordinarily, evidence about whether a plaintiff assumed a risk may be allowed under Tennessee law in a strict liability case. There is no inherent right for Tennessee defendants to present evidence on this issue. “When state law creates a cause of action, the State is free to define the defenses to that claim____” Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979). Indeed, but for the express provision of § 604, the plaintiffs’ failure to use their safety belts clearly would be relevant to GM’s defense. In this case, § 604 must be read as creating an exception to the general rule of admissibility in Tennessee. The language of § 604 is unequivocally broad (“nor shall such failure to wear a safety belt be admissible as evidence in a trial of any civil action”) and is limited only by § 605, as discussed infra. Moreover, the assumption of risk doctrine does not neatly apply to a passenger riding in the rear seat of a car. Assumption of risk is based foremost on the proposition that the plaintiff understands that a risk is present. A rear seat passenger cannot necessarily determine if a danger is presented by failing to wear her seat belt. As the Tennessee legislature has recognized, a rear seat passenger in a vehicle with only lap belts cannot be faulted for failing to buckle up, when that very precautionary measure might actually enhance the possibility of the passenger’s injuries. In fact, plaintiff Ofray Hall stated in his May 23, 1989 deposition that he does not use back seat belts that only have a lap belt because of what he perceives to be a greater risk of injury. Hall Depo. at 107. Failure to wear seat belts cannot be labeled as assumption of the risk in this case. C. Mitigation of Damages Statutory construction and precedent demonstrate that § 604 bars evidence about non-use of seat belts to prove that the plaintiffs had an opportunity to mitigate damages. While § 604 does not include the mitigation of damages language" }, { "docid": "15503344", "title": "", "text": "Inc., 424 F.Supp. 428, 432 (E.D.Tenn.1976). Although the alleged tort in this case, i.e. the defective manufacture of the van’s right rear axle seal, occurred elsewhere, the harm to the Plaintiffs occurred in Tennessee. Therefore, the Plaintiffs’ substantive rights are delineated by the law of Tennessee. Bailey v. Chattem, Inc., 684 F.2d 386, 392 (6th Cir.1982) (quoting Koehler v. Cummings, 380 F.Supp. 1294, 1305 (M.D.Tenn.1974)); Myers, 701 F.Supp. at 620. III. Before embárking on a comprehensive analysis of § 604, it is appropriate and helpful to examine its statutory evolution. The original version of § 604 is now more than twenty-eight years old. Enacted in March 1963 as T.C.A. § 59-930, it provided in pertinent part as follows: [I]n no event shall failure to wear seat belts be considered as contributory negligence, nor shall such failure to wear said seat belts be considered in mitigation of damages on the trial of any civil action. While the 1963 act also required that seat belts must be installed in automobiles, the statute did not require either drivers or passengers to wear them. In 1977, former section 930 was renamed T.C.A. § 55-9-214. Section 214 was a verbatim recodification of the portion of former § 930 that dealt with the relevance of failure to wear safety belts. The current version of Tennessee’s bar against use of the seat belt defense was enacted in 1986 as part of the Tennessee Mandatory Safety Belt Act (the “Act”), T.C.A. §§ 55-9-601 — 610. Section 604 deleted any reference to mitigatory damages and instead incorporated a broad prohibition against admitting into evidence the use of failure to wear a seat belt in any civil action. The legislative intent behind the statutory revision of § 604 is sparse. Perhaps the most noteworthy moment in the shaping of § 604 came when the Tennessee legislature, after a back and forth battle, eventually rejected an attempt by the House of Representatives to weaken the language of the original version of the statute, then codified as § 214. The House of Representatives initially passed an amendment that would have entirely shifted" }, { "docid": "15503341", "title": "", "text": "accident was caused by the defective and unreasonably dangerous condition of the van. Plaintiffs allege that only one of four tires provided effective braking. “The right rear axle seal was defective in its design, manufacture, assembly and installation, in that it was liable to and likely to allow fluid to enter the right rear axle brake system so as to cause the brakes of the.van to be impaired and to function improperly.” MacDonald Complaint at 116. General Motors filed a Motion to Amend Its Answer to include additional defenses. The Court granted that motion on January 12, 1990. Among other defenses, the car manufacturer asserts that the Plaintiffs’ failure to wear the provided safety belts is relevant to the defenses of contributory negligence, assumption of the risk, and failure .to mitigate damages. It also alleges that the evidence is relevant to the determination of proximate causation of the specific injuries sustained. In essence, General Motors argues that the jury should be allowed to consider evidence that the use of seat belts would have prevented or lessened the Plaintiffs’ injuries and, as a result, that the Plaintiffs’ recovery, if any, should be decreased accordingly. This legal theory is more commonly known as the “seat belt defense.” Subsequently, the Plaintiffs filed a Motion to Strike the Defendant’s Affirmative Defenses pursuant to Fed.R.Civ.P. 12(f). Plaintiffs contend that Tenn.Code Ann. (T.C.A.) § 55-9-604 absolutely prohibits evidence of failure to use safety belts in any civil action. Section 604 provides: In no event shall failure to wear a safety belt be considered as contributory negligence, nor shall such failure to wear a safety belt be admissible as evidence in a trial of any civil action. General Motors has responded to that motion and the Attorney General of Tennessee intervened in this action and has filed a memorandum defending the constitutionality of § 604. This case presents five issues: (1) whether T.C.A. §§ 55-9-603 through 610, including § 604, are null and void pursuant to the express provisions of T.C.A. § 55-9-609(b); (2) whether § 604 applies to the vehicle in question; (3) whether § 604" }, { "docid": "14799188", "title": "", "text": "(1938); Southern Land & Development Co., Inc. v. Silvers, 499 F.2d 967 (6th Cir. 1974). In regard to torts, the rule has long prevailed in Tennessee that the law of the place where the tort occurred would control. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934); Sloan v. Nevil, 33 Tenn. App. 100, 229 S.W.2d 350 (1949). This particular choice of law rule, known as the lex loci doctrine, originated out of the vested rights doctrine, namely that the right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. Winters v. Maxey, supra; see 16 Am.Jur.2d, “Conflicts of Law” § 71; Annot., 29 A.L.R.3d 603. While some jurisdictions have abolished the lex loci doctrine in favor of the so-called “dominant contacts” rule (a rule which applies the law of the state which has the most significant contacts to a particular case), see Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965), Tennessee has expressly chosen not to abandon its lex loci choice of law rule. Winters v. Maxey, supra, at 758 (Tenn.1972). Accordingly, as far as tort actions are concerned, in a conflicts of law situation “lex loci” is still the governing principle in Tennessee. Notwithstanding the continued viability of the “lex loci ” principle, the plaintiff attempts to persuade the Court that strict liability, being a relatively new theory of tort recovery, should be treated differently in a conflicts of law situation from other traditional theories of tort recovery. Plaintiff fails, however, to cite any authority in support of its position. Although it does not appear that the Tennessee courts have addressed the specific question raised by the plaintiff, authorities from other jurisdictions have failed to make the distinction urged by the plaintiff between choice of law rules relative to strict liability and choice of law rules relative to other theories" }, { "docid": "15503365", "title": "", "text": "not conclude the Court’s inquiry. For now the Court must examine the scope and constitutionality of the Act as applied. While § 604 excludes much evidence about failure to wear a seat belt, the statute is not as all-encompassing as the Plaintiffs suggest. The Court will therefore weigh the statutory proscription against the four evidentia-ry arguments GM intends to make. That analysis will lead to the following conclusions: First, contributory negligence is not even available as a defense to products liability under Tennessee law. Second, the doctrine of assumption of the risk, even if allowed under § 604, does not apply based on the facts of this case. Third, the policy, statutory construction, and precedent behind § 604 demonstrate that this evidence must not be allowed with respect to mitigation of damages. Fourth, § 604 does not exclude evidence about whether failure to wear seat belts was the proximate cause of the Plaintiffs’ injuries. A. Contributory Negligence The logical force behind the contributory negligence argument advanced by General Motors is nonexistent given that the defense is barred by both the statute and Tennessee precedent. The doctrine of proximate contributory negligence is not available as an affirmative defense to strict liability under Tennessee law. Abbott v. American Honda Motor Co., Inc., 682 S.W.2d 206, 209 (Tenn.App.1984). Thus, even if § 604 did not preclude evidence of seat belt use, General Motors still cannot introduce this evidence under a contributory negligence theory as a defense to a claim of unreasonably dangerous defective design. B. Assumption of Risk Assumption of the risk is available as an affirmative defense to strict liability claims in Tennessee. See, e.g., Gann v. International Harvester Co. of Canada, Ltd., 712 S.W.2d 100, 105 (Tenn.1986); Ellithorpe, 503 S.W.2d at 521; Young v. Reliance Electric Co., 584 S.W.2d 663, 669 (Tenn.App.1979), cert. denied, July 30, 1979. Contrary to Plaintiffs’ contention, assumption of the risk is not merely another name for contributory negligence. The Tennessee Supreme Court has elaborated on the distinction between the two tort defense theories: The two defenses are not synonymous or congruent, even though sometimes the same" }, { "docid": "21916676", "title": "", "text": "it is unnecessary for use to resolve the argument regarding the law of Tennessee. Bailey is a resident of California, doing business in California as Wesley T. Bailey & Associates. He performed a substantial part of his consulting work for Chattem in California. Chattem is a Tennessee corporation with its principal place of business in Tennessee. Many of the discussions between Bailey and Chattem concerning assignment of his rights in any patent that issued saw a representative of Chattem speaking or writing in Tennessee to Bailey, who received these communications in California. Bailey twice executed an assignment of his right to the patent in California and mailed these assignments to Chattem in Tennessee. Tennessee is the forum state in this case. The conflicts law of the forum determines which state’s substantive law shall apply. Telecommunications, Engineering Sales & Service Co. v. Southern Telephone Supply Co., 518 F.2d 392, 394 (6th Cir. 1975). Where a tort is alleged Tennessee conflicts law applies the substantive law of the state where the wrong occurred. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972). If the tort occurred in more than one state the place of the wrong is the state where the last event necessary to make the actor liable took place. Koehler v. Cummings, 380 F.Supp. 1294, 1305 (M.D. Tenn.1974). Under this lex loci delicti approach, “[w]hen a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations are made.” Restatement of Conflict of Laws § 377, Note 4 (1934). Chattem argues on appeal that the trial court should have applied the substantive law of Tennessee, on the theory that Bailey was not damaged and the tort was not complete until he was refused the long-term consulting contract that Chattem supposedly promised him and this refusal occurred in Tennessee. In the alternative, Chattem argues that because Bailey enclosed certain conditions with the first assignment of his patent rights the delivery was not effective in California, so Tennessee law should apply- Chattem cannot prevail on its theory that Bailey did not effectively assign his patent rights" }, { "docid": "14799187", "title": "", "text": "Tennessee should apply; (b) that the law of Alabama should govern the plaintiff’s action founded upon common law negligence; (c) that the law of Tennessee should apply as regards plaintiff’s contract action based upon breach of warranty. Accordingly, the only disputed issue with respect to the conflicts of law question concerns which state’s law is to govern plaintiff’s action based upon strict liability. The defendants argue that Alabama law should apply since the State of Alabama was the place where the injury here involved occurred. Plaintiff, on the other hand, argues that Tennessee law, or the law of the forum, should apply since there are no definitive choice of law rules in Tennessee dictating otherwise. It is of course well established that a federal district court, while sitting in its diversity jurisdiction, must apply the substantive law of the forum state, including its choice-of-law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Southern Land & Development Co., Inc. v. Silvers, 499 F.2d 967 (6th Cir. 1974). In regard to torts, the rule has long prevailed in Tennessee that the law of the place where the tort occurred would control. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934); Sloan v. Nevil, 33 Tenn. App. 100, 229 S.W.2d 350 (1949). This particular choice of law rule, known as the lex loci doctrine, originated out of the vested rights doctrine, namely that the right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. Winters v. Maxey, supra; see 16 Am.Jur.2d, “Conflicts of Law” § 71; Annot., 29 A.L.R.3d 603. While some jurisdictions have abolished the lex loci doctrine in favor of the so-called “dominant contacts” rule (a rule which applies the law of the state which has the most significant contacts to a particular case)," }, { "docid": "7678398", "title": "", "text": "DECISION AND ENTRY GRANTING PLAINTIFFS’ MOTION IN LIMINE RICE, District Judge. This case is before the Court on Plaintiffs’ Motion in Limine (Doc. # 176), which seeks to have this Court order that evidence of the use or non-use of seat belts or other types of restraints by the Plaintiffs while in the van at the time of the collision which is the subject of this suit is inadmissible at trial. This Court has previously determined that Plaintiffs’ claims against Defendants Plunkett and Thurston Motor Lines are governed by the law of Tennessee and that the product liability claims in this suit (including those of Plaintiffs against Chrysler) are governed by the law of Ohio. It is therefore necessary in this case to divide consideration of the Motion in Limine into two questions: (1) whether evidence of the use of seat belts is relevant evidence with regard to the negligence claims of the Plaintiffs against Plunkett and Thurston and (2) whether such evidence is relevant to the product liability claims. Addressing the relevance of seat belt evidence to the negligence claims against Plunkett and Thurston first, the Court finds that Tennessee law plainly precludes the use of such evidence. Tennessee Code Section 55-9-214 provides, in part: In no event shall failure to wear seat belts be considered as contributory negligence, nor shall such failure to wear said belts be considered in mitigation of damages on the trial of any civil action. See also Mann v. United States, 294 F.Supp. 691 (E.D.Tenn.1968); Stallcup v. Taylor, 62 Tenn.App. 407, 463 S.W.2d 416 (1970). Accordingly, the Court concludes that there can be no question but that evidence of use or non-use of seat belts is irrelevant to Plaintiffs’ claims against Defendants Plunkett and Thurston Motor Lines, and therefore must be excluded as evidence in the phase one trial discussed by this Court in its letter to counsel dated May 7, 1986. The relevance of evidence regarding the use or non-use of seat belts with regard to the product liability claims against Chrysler, Arena Dodge, Dayton Recreational Vehicles and Dygert Seating is governed by" }, { "docid": "15503371", "title": "", "text": "new language is much broader than the wording of the prior statute. The wording of § 604 provides ample room to include the doctrine of mitigation of damages under its scope. Second, the rejection of the House amendment discussed supra (that would have allowed evidence about non-use of seat belts in support of a mitigation of damages defense) indicates that the Tennessee legislature did not intend the bill to include the provisions embodied in the rejected amendment. 2A Sands, Sutherland on Statutory Construction, § 48.18 at 341; Tahoe Regional Planning Agency v. McKay, 769 F.2d 534, 538 (9th Cir.1985). While the language of rejected alternative legislation may not help to interpret the final legislation in some situations, United States v. Stauffer Chemical Co., 684 F.2d 1174, 1184 (6th Cir.1982) (construing the Clean Air Act), aff'd, 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984), in this case the amendment that would have instituted a limited seat belt defense was discarded by legislators in favor of retaining the long-standing Tennessee law barring use of seat belt evidence. Third, General Motors’ argument is undermined by T.C.A. § 55-9-605. Section 604 must be read in conjunction with § 605, entitled “Liability of manufacturer.” Section 605 provides that: The provisions of this part shall not be construed to relieve the manufacturer of any product regulated pursuant to the provisions of this part from any liability concerning such product which existed prior to April 21, 1986, nor shall any criminal or civil liability for such product be construed to be waived by any provisions of this part. This shall not be construed as establishing, or creating, strict liability on the part of the manufacturer. A reasonable interpretation of that statutory language is that the substantive elements of former § 930 still are incorporated under the current version of the statute and were not rendered irrelevant by legislative fiat prior to April 21, 1986. Prior to the enactment of § 604, former § 930 provided that a car manufacturer could not avoid liability concerning its product due to a plaintiffs pre-accident failure to mitigate damages" }, { "docid": "15503343", "title": "", "text": "is preempted by the National Motor Vehicle Safety Act, 15 U.S.C. §§ 1381 et seq.; (4) whether the court should apply the Federal Rules of Evidence or § 604 on the question of admissibility of seat belt use; and (5) if § 604 is applicable, what is its scope. The Court will examine these questions in turn below. II. This product liability diversity action is governed by the substantive law of Tennessee. A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state, including that state’s choice of law rule. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Under Tennessee tort law, choice of law is governed by the doctrine of lex loci delictus, “the place of the harm.” Winters v. Maxey, 481 S.W.2d 755, 756-759 (Tenn.1972). Accord Myers v. Hayes Int’l Corp., 701 F.Supp. 618, 620 (M.D.Tenn.1988) (Wiseman, C.J.). The doctrine applies in strict liability eases as well as negligence suits. Myers, 701 F.Supp. at 620-622; Babcock v. Maple Leaf, Inc., 424 F.Supp. 428, 432 (E.D.Tenn.1976). Although the alleged tort in this case, i.e. the defective manufacture of the van’s right rear axle seal, occurred elsewhere, the harm to the Plaintiffs occurred in Tennessee. Therefore, the Plaintiffs’ substantive rights are delineated by the law of Tennessee. Bailey v. Chattem, Inc., 684 F.2d 386, 392 (6th Cir.1982) (quoting Koehler v. Cummings, 380 F.Supp. 1294, 1305 (M.D.Tenn.1974)); Myers, 701 F.Supp. at 620. III. Before embárking on a comprehensive analysis of § 604, it is appropriate and helpful to examine its statutory evolution. The original version of § 604 is now more than twenty-eight years old. Enacted in March 1963 as T.C.A. § 59-930, it provided in pertinent part as follows: [I]n no event shall failure to wear seat belts be considered as contributory negligence, nor shall such failure to wear said seat belts be considered in mitigation of damages on the trial of any civil action. While the 1963 act also required that seat belts must be installed in automobiles, the statute did not require either drivers" }, { "docid": "15503380", "title": "", "text": "causation. Finally, the Court need not address the due process or equal protection clause claims, since General Motors may introduce evidence about seat belt use on the element of causation. . Five other passengers who are not parties to this lawsuit were in the van at the time of the accident. . Former T.C.A. § 59-930 also contained provisions requiring that automobiles be equipped with safety belts. Cf. T.C.A. § 55-9-601 (1986). . 49 C.F.R. § 571.208, S4.1.5.1 (1987) provides: If the Secretary of Transportation determines, by not later than April 1, 1989, that state mandatory safety belt usage laws have been enacted that meet the criteria specified in S4.1.5.2 and that are applicable to not less than two-thirds of the total population of the 50 states and the District of Columbia (based on the most recent Estimates of the Resident Population of States, by Age, Current Population Reports, Series P-25, Bureau of the Census), each passenger car manufactured under S4.1.3 determination shall comply with the requirements of S4.1.2.1, S4.1.2.2, or S4.1.2.3. . Remote contributory negligence is an ‘‘unusual\" Tennessee tort doctrine defined as that negligence which is too far removed as to time or place, or causative force, to be a direct or proximate cause of the accident. Arnold v. Hayslett, 655 S.W.2d 941, 945 (Tenn.1983). If a plaintiffs conduct is found to constitute remote contributory negligence, any damages awarded will be reduced in proportion to the plaintiffs contribution to the injury. Id. Thus, while proximate contributory negligence bars recovery completely, remote contributory negligence only mitigates damages. Perry v. Gulf, Mobile & Ohio R. Co., 502 F.2d 1144, 1145 (6th Cir.1974) (applying Tennessee law). . The \"crashworthiness” doctrine refers to liability for negligence that has caused injuries but not the initial accident. . “Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he had no knowledge. Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts.” Prosser & Keeton on Torts, §" }, { "docid": "15503342", "title": "", "text": "lessened the Plaintiffs’ injuries and, as a result, that the Plaintiffs’ recovery, if any, should be decreased accordingly. This legal theory is more commonly known as the “seat belt defense.” Subsequently, the Plaintiffs filed a Motion to Strike the Defendant’s Affirmative Defenses pursuant to Fed.R.Civ.P. 12(f). Plaintiffs contend that Tenn.Code Ann. (T.C.A.) § 55-9-604 absolutely prohibits evidence of failure to use safety belts in any civil action. Section 604 provides: In no event shall failure to wear a safety belt be considered as contributory negligence, nor shall such failure to wear a safety belt be admissible as evidence in a trial of any civil action. General Motors has responded to that motion and the Attorney General of Tennessee intervened in this action and has filed a memorandum defending the constitutionality of § 604. This case presents five issues: (1) whether T.C.A. §§ 55-9-603 through 610, including § 604, are null and void pursuant to the express provisions of T.C.A. § 55-9-609(b); (2) whether § 604 applies to the vehicle in question; (3) whether § 604 is preempted by the National Motor Vehicle Safety Act, 15 U.S.C. §§ 1381 et seq.; (4) whether the court should apply the Federal Rules of Evidence or § 604 on the question of admissibility of seat belt use; and (5) if § 604 is applicable, what is its scope. The Court will examine these questions in turn below. II. This product liability diversity action is governed by the substantive law of Tennessee. A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state, including that state’s choice of law rule. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Under Tennessee tort law, choice of law is governed by the doctrine of lex loci delictus, “the place of the harm.” Winters v. Maxey, 481 S.W.2d 755, 756-759 (Tenn.1972). Accord Myers v. Hayes Int’l Corp., 701 F.Supp. 618, 620 (M.D.Tenn.1988) (Wiseman, C.J.). The doctrine applies in strict liability eases as well as negligence suits. Myers, 701 F.Supp. at 620-622; Babcock v. Maple Leaf," }, { "docid": "15503367", "title": "", "text": "facts have relevance to both defenses; nor do these defenses rest upon the same policy considerations. [Assumption of the risk] is concerned with the voluntary consent by a claimant to a known risk; [contributory negligence] deals with the unreasonable conduct of the plaintiff as a direct and proximate cause of his own injuries. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn.1988). The Tennessee Supreme Court in Ellithorpe, 503 S.W.2d 516, defined the elements of assumption of the risk as: (1) discovery of the defect by the plaintiff, (2) full knowledge about the danger it presents to her, and (3) disregard of this known danger and voluntarily exposure to the defect. Id. at 522. The standard is subjective and depends on the situation of the plaintiff. Prosser & Keeton on Torts, § 68 at 487 (5th ed. 1984). General Motors suggests that the Plaintiffs, by failing to wear their available seat belts, voluntarily accepted the additional risk of injury possible in the event of an accident. That theory conflicts with § 604 and the facts of this case. Ordinarily, evidence about whether a plaintiff assumed a risk may be allowed under Tennessee law in a strict liability case. There is no inherent right for Tennessee defendants to present evidence on this issue. “When state law creates a cause of action, the State is free to define the defenses to that claim____” Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979). Indeed, but for the express provision of § 604, the plaintiffs’ failure to use their safety belts clearly would be relevant to GM’s defense. In this case, § 604 must be read as creating an exception to the general rule of admissibility in Tennessee. The language of § 604 is unequivocally broad (“nor shall such failure to wear a safety belt be admissible as evidence in a trial of any civil action”) and is limited only by § 605, as discussed infra. Moreover, the assumption of risk doctrine does not neatly apply to a passenger riding in the rear seat of a car." }, { "docid": "15503364", "title": "", "text": "car crash case in which the plaintiffs raised strict liability claims against the car manufacturer. In response, Ford contended that the plaintiff’s conduct amounted to contributory negligence, abnormal use of the product, and assumption of the risk. In particular, Ford argued that, although the plaintiff wore her lap belt, her failure to wear the shoulder harness amounted to misuse of the product. The court adopted the “crashworthiness” doctrine, holding that car collisions are foreseeable and that the manufacturer has a duty to minimize the harm of inevitable accidents by utilizing a reasonably safe design. The Court also cautioned that the defense of abnormal use should not apply because a car manufacturer can reasonably foresee the “failure of its consumers to wear their safety belts.” 503 S.W.2d at 521. Although the cases above do not interpret § 604, they leave no conclusion except that § 604 applies in this case and that its statutory language directs the court to preclude evidence about failure to wear a safety belt during the trial. This general language, however, does not conclude the Court’s inquiry. For now the Court must examine the scope and constitutionality of the Act as applied. While § 604 excludes much evidence about failure to wear a seat belt, the statute is not as all-encompassing as the Plaintiffs suggest. The Court will therefore weigh the statutory proscription against the four evidentia-ry arguments GM intends to make. That analysis will lead to the following conclusions: First, contributory negligence is not even available as a defense to products liability under Tennessee law. Second, the doctrine of assumption of the risk, even if allowed under § 604, does not apply based on the facts of this case. Third, the policy, statutory construction, and precedent behind § 604 demonstrate that this evidence must not be allowed with respect to mitigation of damages. Fourth, § 604 does not exclude evidence about whether failure to wear seat belts was the proximate cause of the Plaintiffs’ injuries. A. Contributory Negligence The logical force behind the contributory negligence argument advanced by General Motors is nonexistent given that the defense" }, { "docid": "15503362", "title": "", "text": "of law and applicable state precedent is absent, this Court must predict how the highest court of the state would resolve the issue. Id. at 1520. See also Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3rd Cir.1991); Empire Distributors of N.C. v. Schieffelin & Co., 859 F.2d 1200, 1203 (4th Cir.1988). Three prior decisions interpreting Tennessee’s seat belt statute have commented on the predecessor to § 604, holding that it barred introduction of evidence about seat belt use for remote or proximate contributory negligence, negligence, mitigation of damages, and misuse of the product. Cheatham v. Thurston Motor Lines, 654 F.Supp. 216 (S.D.Ohio 1986), involved negligence claims governed by Tennessee law and products liability claims governed by Ohio law. Turning to the negligence claims, the court applied former T.C.A. § 55-9-214 (as noted supra, a verbatim recodification of the portion of former T.C.A. § 59-930) on a Motion in Limine and held that “there can be no question but that evidence of use or non-use of seat belts is irrelevant to Plaintiff’s [negligence claims], and therefore must be excluded.” 654 F.Supp. at 217 (emphasis added). The court also addressed a seat belt evidentiary dispute in Stallcup v. Taylor, 62 Tenn.App. 407, 463 S.W.2d 416 (Tenn.App.1970), cert. denied, Feb. 16, 1971. Following a trial, the plaintiff won a judgment based exclusively on the defendant’s negligence in colliding with the car driven by the plaintiff’s decedent. The defendant appealed based on the trial court’s failure to charge the jury on the subject of remote contributory negligence. In Stallcup, the defendant’s argument summarily was rejected. After citing former § 930, which explicitly forbade evidence about non-use of seat belts in reference to contributory negligence and mitigation of damages, the appellate court found that the statute “concludes the question of instructing the jury on the subject____ [of] seat belts, proximate and remote contributory negligence____” Id. 463 S.W.2d at 422. Finally, and most important to the instant motion, the Tennessee Supreme Court in Ellithorpe v. Ford Motor Company, 503 S.W.2d 516, 521 (Tenn.1973) reaffirmed the exclusionary language of former § 930. Ellithorpe involved a" }, { "docid": "15503363", "title": "", "text": "and therefore must be excluded.” 654 F.Supp. at 217 (emphasis added). The court also addressed a seat belt evidentiary dispute in Stallcup v. Taylor, 62 Tenn.App. 407, 463 S.W.2d 416 (Tenn.App.1970), cert. denied, Feb. 16, 1971. Following a trial, the plaintiff won a judgment based exclusively on the defendant’s negligence in colliding with the car driven by the plaintiff’s decedent. The defendant appealed based on the trial court’s failure to charge the jury on the subject of remote contributory negligence. In Stallcup, the defendant’s argument summarily was rejected. After citing former § 930, which explicitly forbade evidence about non-use of seat belts in reference to contributory negligence and mitigation of damages, the appellate court found that the statute “concludes the question of instructing the jury on the subject____ [of] seat belts, proximate and remote contributory negligence____” Id. 463 S.W.2d at 422. Finally, and most important to the instant motion, the Tennessee Supreme Court in Ellithorpe v. Ford Motor Company, 503 S.W.2d 516, 521 (Tenn.1973) reaffirmed the exclusionary language of former § 930. Ellithorpe involved a car crash case in which the plaintiffs raised strict liability claims against the car manufacturer. In response, Ford contended that the plaintiff’s conduct amounted to contributory negligence, abnormal use of the product, and assumption of the risk. In particular, Ford argued that, although the plaintiff wore her lap belt, her failure to wear the shoulder harness amounted to misuse of the product. The court adopted the “crashworthiness” doctrine, holding that car collisions are foreseeable and that the manufacturer has a duty to minimize the harm of inevitable accidents by utilizing a reasonably safe design. The Court also cautioned that the defense of abnormal use should not apply because a car manufacturer can reasonably foresee the “failure of its consumers to wear their safety belts.” 503 S.W.2d at 521. Although the cases above do not interpret § 604, they leave no conclusion except that § 604 applies in this case and that its statutory language directs the court to preclude evidence about failure to wear a safety belt during the trial. This general language, however, does" }, { "docid": "15503373", "title": "", "text": "by wearing a seat belt. Stallcup explored the scope of Tennessee’s prior seat belt statute and held that the plain meaning of that former statute barred evidence about remote contributory negligence and the related doctrine of mitigation of damages. Stallcup, 463 S.W.2d 416. Thus, § 604 bars evidence of seat belt nonuse to establish failure to mitigate damages. D. Proximate Cause Finally, § 604 does not address whether a defendant may argue that a plaintiff’s failure to use an available passenger restraint constituted the proximate cause of his injuries. General Motors contends that it should be allowed to demonstrate that the plaintiffs’ injuries arose from their failure to wear safety belts rather than the alleged design defect. Unlike the three defenses examined supra, the Court finds that evidence about causation should be allowed in this case based on the purpose and construction of the Act. It is well settled that a plaintiff may not prevail merely upon a showing that the defendant’s product was defective or unreasonably dangerous and that she was injured. Just as is the case in a negligence action, a products liability claim must include the element of proximate causation of the plaintiff’s injuries, a determination “ordinarily for the finder of fact.” Young, 584 S.W.2d at 668 (citing Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 280-81 (Tenn.App.1977)). The. Tennessee Supreme Court has held that- to establish proximate causation in a negligence action, the primary issue is whether “the tort-feasor’s conduct must have been a ‘substantial factor’ in bringing about the harm being complained of____” McClenahan v. Cooley, 806 S.W.2d 767, 775 (1991). Accord Lancaster v. Montesi, 216 Tenn. 50, 57, 390 S.W.2d 217, 221 (1965) (to establish proximate cause, it is not required that a cause be the sole cause, the last act, or the one nearest to the injury, as long as it is a substantial factor causing the injury). Section 605 provides that the Act does nothing to alter the definition of strict liability. It specifically disclaims either the creation or establishment of a stripped-down version of strict liability upon motor vehicle manufacturers. While" }, { "docid": "7678399", "title": "", "text": "belt evidence to the negligence claims against Plunkett and Thurston first, the Court finds that Tennessee law plainly precludes the use of such evidence. Tennessee Code Section 55-9-214 provides, in part: In no event shall failure to wear seat belts be considered as contributory negligence, nor shall such failure to wear said belts be considered in mitigation of damages on the trial of any civil action. See also Mann v. United States, 294 F.Supp. 691 (E.D.Tenn.1968); Stallcup v. Taylor, 62 Tenn.App. 407, 463 S.W.2d 416 (1970). Accordingly, the Court concludes that there can be no question but that evidence of use or non-use of seat belts is irrelevant to Plaintiffs’ claims against Defendants Plunkett and Thurston Motor Lines, and therefore must be excluded as evidence in the phase one trial discussed by this Court in its letter to counsel dated May 7, 1986. The relevance of evidence regarding the use or non-use of seat belts with regard to the product liability claims against Chrysler, Arena Dodge, Dayton Recreational Vehicles and Dygert Seating is governed by Ohio law. In enacting the Ohio Mandatory Seat Belt Law, the state legislature amended Section 4513.263(G) of the Ohio Revised Code to read: A person’s failure to wear all of the available elements of a properly adjusted occupant restraining device or to ensure that each passenger of an automobile being operated by the person is wearing all of the available elements of such a device, in violation of division (D) of this section, shall not be considered or used as evidence of negligence or contributory negligence, shall not diminish recovery for damages in any civil action involving the person arising from the ownership, maintenance, or operation of an automobile, shall not be used as a basis for a criminal prosecution of the person other than a prosecution for violation of this section, and shall not be admissible as evidence in any civil or criminal action involving the person other than a prosecution for a violation of division (B) of this section. It is unclear whether this section applies retroactively to bar the admission of evidence" }, { "docid": "15503372", "title": "", "text": "belt evidence. Third, General Motors’ argument is undermined by T.C.A. § 55-9-605. Section 604 must be read in conjunction with § 605, entitled “Liability of manufacturer.” Section 605 provides that: The provisions of this part shall not be construed to relieve the manufacturer of any product regulated pursuant to the provisions of this part from any liability concerning such product which existed prior to April 21, 1986, nor shall any criminal or civil liability for such product be construed to be waived by any provisions of this part. This shall not be construed as establishing, or creating, strict liability on the part of the manufacturer. A reasonable interpretation of that statutory language is that the substantive elements of former § 930 still are incorporated under the current version of the statute and were not rendered irrelevant by legislative fiat prior to April 21, 1986. Prior to the enactment of § 604, former § 930 provided that a car manufacturer could not avoid liability concerning its product due to a plaintiffs pre-accident failure to mitigate damages by wearing a seat belt. Stallcup explored the scope of Tennessee’s prior seat belt statute and held that the plain meaning of that former statute barred evidence about remote contributory negligence and the related doctrine of mitigation of damages. Stallcup, 463 S.W.2d 416. Thus, § 604 bars evidence of seat belt nonuse to establish failure to mitigate damages. D. Proximate Cause Finally, § 604 does not address whether a defendant may argue that a plaintiff’s failure to use an available passenger restraint constituted the proximate cause of his injuries. General Motors contends that it should be allowed to demonstrate that the plaintiffs’ injuries arose from their failure to wear safety belts rather than the alleged design defect. Unlike the three defenses examined supra, the Court finds that evidence about causation should be allowed in this case based on the purpose and construction of the Act. It is well settled that a plaintiff may not prevail merely upon a showing that the defendant’s product was defective or unreasonably dangerous and that she was injured. Just as" } ]

[ { "docid": "23136115", "title": "", "text": "of the assets of the taxpayer.” Reg. § 301.6503(b) — 1. It would depend on not only what assets the bankruptcy court controlled but also how much property the bankrupt had been able to acquire after bankruptcy. This inquiry would take place up to six years after the closing of the bankruptcy estate. We would be reluctant to introduce such complex factual questions into a statute of limitations question even absent some express Congressional policy. Here,- however, Congress has disapproved of similar inquiries. Prior to the 1966 Federal Tax Lien Act, § 6503(c) of the Code provided for suspension of the period of limitations where collection of the tax was hindered or delayed because the taxpayer’s assets were outside of the United States. The Section was changed by the Act to suspend the period of limitations during the time that the taxpayer is outside the country. The reason for the change was to eliminate from consideration the difficult factual problem of determining when collection is hindered because the assets of the taxpayer are outside of the country. Thus, Congress expressed a policy against introducing difficult factual determination into statute of limitations questions. This Court will not incorporate into § 6503(b) the very problem that Congress sought to avoid in § 6503(c). Therefore, it rejects a construction of § 6503(b) depending on the factual determination of location or custody or control of the taxpayer’s assets. This brings us to the government’s contention tiiat the period of limitations on collection is suspended from the time the bankruptcy estate is opened until it is closed. United States v. Malkin, supra, accepted this theory. United States v. Verlinsky, supra, rejected it. We also reject it. Several considerations enter into our decision. First, such a rule is capable of staying the period of limitations for unjustifiably long periods. In this case the bankruptcy lasted 9 years. Adding to this the normal 6 year period of limitations would allow the government 15 years in which to collect its claim. This harsh result is inconsistent with the Congressional policy expressed in § 6872 to not unduly extend" } ]

[ { "docid": "12214574", "title": "", "text": "Waugh), 109 F.3d 489, 491 (8th Cir.1997). There is no other provision within the Bankruptcy Code that explicitly extends § 507(a)(8)(A)(i)’s three-year period while a debtor is engaged in a bankruptcy proceeding. See id. at 492. Thus, the plain meaning of the Bankruptcy Code provides that income tax debts are dischargeable in a Chapter 7 bankruptcy if they arise from a tax return due more than three years prior to the filing of the Chapter 7 petition. B. Despite the lack of ambiguity in the three-year look-back rule, the IRS points to several courts that have found a way around the plain meaning of §§ 523(a)(1)(A) and 507(a)(8)(A)®. The first group of cases hold that 11 U.S.C. § 108(c), in conjunction with § 6503 of the Internal Revenue Code (“I.R.C.”), shows Congress’s intent to toll the three-year look-back period. See Waugh, 109 F.3d 489; In re Taylor, 81 F.3d 20 (3d Cir.1996); Montoya v. United States (In re Montoya), 965 F.2d 554 (7th Cir.1992); see also West v. United States (In re West), 5 F.3d 423 (9th Cir.1993) (tolling 240-day priority period of § 507(a)(7)(A)(ii) during prior bankruptcy). Section 108(c) sus pends the running of a nonbankruptcy law’s period of Imitations during the time that an automatic stay is in place. See 11 U.S.C. §§ 108(c), 862. Section 6503(b) tolls the I.R.C.’s period of limitations on collection while a taxpayer’s assets are in control or custody of a court, plus an additional six months. See I.R.C. §§ 6502, 6503(b). Section 6503(h) of the I.R.C., which applies specifically to cases brought under the Bankruptcy Code, suspends the I.R.C.’s period of limitations during the time that the bankruptcy case prohibits the IRS from collecting from a taxpayer (plus sixty days for assessments and six months for collections). See 11 U.S.C. § 6503(h). The IRS argues, as the BAP held, that § 108(c) and § 6503 of the I.R.C. show Congress’s intent to preserve the IRS’s capacity to pursue claims against debtors who file for bankruptcy for a full three years, and to toll the three-year period when a bankruptcy petition interrupts it." }, { "docid": "12214575", "title": "", "text": "423 (9th Cir.1993) (tolling 240-day priority period of § 507(a)(7)(A)(ii) during prior bankruptcy). Section 108(c) sus pends the running of a nonbankruptcy law’s period of Imitations during the time that an automatic stay is in place. See 11 U.S.C. §§ 108(c), 862. Section 6503(b) tolls the I.R.C.’s period of limitations on collection while a taxpayer’s assets are in control or custody of a court, plus an additional six months. See I.R.C. §§ 6502, 6503(b). Section 6503(h) of the I.R.C., which applies specifically to cases brought under the Bankruptcy Code, suspends the I.R.C.’s period of limitations during the time that the bankruptcy case prohibits the IRS from collecting from a taxpayer (plus sixty days for assessments and six months for collections). See 11 U.S.C. § 6503(h). The IRS argues, as the BAP held, that § 108(c) and § 6503 of the I.R.C. show Congress’s intent to preserve the IRS’s capacity to pursue claims against debtors who file for bankruptcy for a full three years, and to toll the three-year period when a bankruptcy petition interrupts it. See Palmer, 228 B.R. at 884-86. We find the cases relying upon § 108(c) and § 6503 to be unpersuasive, because they impute a meaning to the Bankruptcy Code that contradicts its plain language. The wording of § 108(c) could not be more clear; that section applies only to “non-bankruptcy law.” See 11 U.S.C. § 108(c) (emphasis added). The provisions at issue in this case — §§ 523(a)(1)(A) and 507(a)(8)(A)(i) — are, of course, not “non-bankruptcy law.” As such, they are outside the purview of § 108. See Morgan, 182 F.3d at 779; Quenzer v. United States (In re Quenzer), 19 F.3d 163, 165 (5th Cir.1993); Nolan, 205 B.R. at 889. Further, the fact that Congress provided for various tolling provisions to the limitations period it crafted for purposes of the I.R.C. fails to convince us that Congress intended to craft a similar tolling provision in § 607(a)(8)(A)(i) when the plain language of the Bankruptcy Code states otherwise. See Nolan, 205 B.R. at 888 (holding that “[t]he three year look back in § 507(a)(8)(A)(i) is" }, { "docid": "5133979", "title": "", "text": "days later, on January 31, 1991, debtor filed this case, his second chapter 11 petition. On August 27, 1992 this case was converted to Chapter 7. Debtor contends that his debts to the IRS are dischargeable, some returns having been filed more than three years pri- or to the date of conversion to chapter 7 (§ 507(a)(7)(A)(i)), and some relating to late returns filed within two years of that date (§ 523(a)(l)(B)(ii)). The IRS contends, how ever, that for purposes of determining the dischargeability of taxes, the periods prescribed under § 507(a)(7)(A) and § 523(a)(l)(B)(ii) are suspended during the pendency of the automatic stay in a debtor’s prior bankruptcy and for six months thereafter. Courts considering the effect of a debtor’s prior bankruptcy on the nondischargeability periods noted have overwhelmingly agreed with the IRS position. The analysis of these courts, which I adopt, is based on 11 U.S.C. § 108(c) and 26 U.S.C. §§ 6501, 6502, 6503(b), (h). Although the IRS is prevented from assessing or collecting federal taxes during a bankruptcy case, 11 U.S.C. § 362(a)(6), § 108(c) extends a statute of limitations for creditors in actions against the debtor when the creditor is prevented from proceeding outside the bankruptcy court due to the automatic stay of the Bankruptcy Code. Molina, supra n. 3, at 794. The Internal Revenue Code (“IRC”), title 26 United States Code, provides for such a statute of limitations for assessment of taxes (3 years), 26 U.S.C. § 6501(a), and for the collection of taxes after assessment (10 years). 26 U.S.C. § 6502(a). In addition to § 108(c), the Internal Revenue Code also provides for its own suspension of these periods for collection and assessment during a bankruptcy case. IRC §§ 6503(b), (h). Accordingly, courts have uniformly interpreted § 108(c) to activate IRC § 6503 and to prevent the periods for nondischargeability from running during the course of a debtor’s bankruptcy case and for six months thereafter. See e.g., supra n. 3, Brickley, at 115; Molina, at 795; Stoll, at 785-86. Pertinent to these courts’ analyses is legislative history to § 108(c) which provides: In" }, { "docid": "3816983", "title": "", "text": "of the Internal Revenue Code (“IRC”), the statute of limitations in Section 6502 for the collection of federal taxes is suspended for any period the taxpayer’s assets are in the control of the courts and extended for six months thereafter. The first case to address the issue of whether the pendency of a previously filed bankruptcy ease suspends the running of the priority periods within Section 507(a)(7) was Brickley v. IRS (In re Brickley), 70 B.R. 113 (9th Cir. BAP 1986). Brickley involved serial filings under Chapter 13 and Chapter 7. In November of 1981, debtors filed a Chapter 13 petition. IRS filed a priority proof of claim for taxes owed within three years of the filing. The Chapter 13 case took several years to complete, and when it ended, debtors filed for relief under Chapter 7 in October of 1984. In the Chapter 7 case, the bankruptcy court concluded that debtors’ 1979 and 1980 tax obligations retained their priority status, and therefore, were not subject to discharge. In reaching its conclusion, the bankruptcy court determined that the three-year priority period within Section 507(a)(7)(A)(i) did not run during the pendency of the prior Chapter 13 bankruptcy case. On appeal, the Bankruptcy Appellate Panel affirmed. The Panel determined that Section 108(c) incorporates the tolling provision of IRC § 6503(b) to extend the priority period of Section 507(a)(7)(A)(i) when the taxing authority is hampered from proceeding by a pending bankruptcy case and the existence of the automatic stay. Brickley, 70 B.R. at 115. The Ninth Circuit Court of Appeals found Brickley persuasive and adopted its reasoning in West v. United States (In re West), 5 F.3d 423, 427 (9th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1830, 128 L.Ed.2d 459 (1994). West involved multiple filings under Chapter 13. On June 13, 1988, the IRS assessed income taxes for the years 1982 through 1984 against Beverly and Robert Worthen. Two-hundred and twenty days later, on January 19, 1989, the Worthens filed a joint petition under Chapter 13. On May 30, 1990, the Worthens voluntarily dismissed their case. Shortly thereafter, they divorced. On" }, { "docid": "1181848", "title": "", "text": "to collect unpaid taxes un-impeded by an intervening bankruptcy is reflected in a series of tolling provisions. For example, 11 U.S.C. § 108 suspends that statute of limitations for actions outside of bankruptcy for pen-dency of the current bankruptcy proceedings. And, 26 U.S.C. § 6503(h) of the Internal Revenue Code suspends the time within which the government can collect a debtor’s taxes for the pendency of the bankruptcy proceedings and six months thereafter. Id. at 765. The Richards court went on to hold that “although the reasoning of the courts which have addressed the precise present problem varies, the results have consistently been the same, i.e., neither the three year period provided for in 11 U.S.C. § 507(a)(7)(A)(i) nor the 240 day period provided for in 11 U.S.C. § 507(a)(7)(A)(ii) runs during the pendency of the first of two successive bankruptcies.” Id. at 766. See also In re Molina, 99 B.R. 792 (S.D.Ohio 1988) (three year period in 11 U.S.C. § 507(a)(7)(A)© was suspended for the filing of the first bankruptcy petition); In re Brickley, 70 B.R. 113 (9th Cir. BAP 1986) (11 U.S.C. § 108(c) in conjunction with 26 U.S.C. § 6503 suspends the three year tax collection period in 11 U.S.C. § 507(a)(7)(A)© while the debtor’s assets were protected by the Bankruptcy Court). CONCLUSION In this case, the government was prevented by the automatic stay provided for in 11 U.S.C. § 362(a) from attempting to collect the post-petition taxes, penalties and interest that accrued during the time that the Solito’s were under their previous Chapter 13 bankruptcy proceeding. It follows that the three year period should not run while the Solito’s were in their first bankruptcy and the government was under the automatic stay. Therefore, the Bankruptcy Court’s ruling to suspend the three year period while the appellants were under the protection of the Bankruptcy Court under their initial Chapter 13 case fulfills and preserves Congress’ intent to afford the government certain time periods to pursue collection efforts. ORDER Because the IRS has not yet had three years to collect the accrued tax liabilities of the appellants, the" }, { "docid": "18854894", "title": "", "text": "unimpeded by an intervening bankruptcy is reflected in a series of tolling provisions. For example, 11 U.S.C. § 108 suspends the statute of limitations for actions outside of bankruptcy for the pendency of the current bankruptcy proceedings. And, 26 U.S.C. § 6503(h) of the Internal Revenue Code suspends the time within which the government can collect a debtor’s taxes for the pendency of the bankruptcy proceedings and six months thereafter. The Bankruptcy Court’s order suspending the 240-day period while Richards was in his first bankruptcy fulfills and preserves Congress’s intent to afford the government certain time periods to pursue collection efforts, and at the same time prevents the debtor from avoiding priority by prolonging the initial bankruptcy proceeding. During Rich ards’ first bankruptcy, the government was prevented by the automatic stay provided for in 11 U.S.C. § 362(a) (Supp.1992) from attempting to collect, and it would seem to follow that the 240-day period should not run while Richards was in his first bankruptcy and the government was under the automatic stay. Although the reasoning of the courts which have addressed the precise present problem varies, the results have consistently been the same, i.e. neither the three-year period provided for in 11 U.S.C. § 507(a)(7)(A)(i) nor the 240-day period provided for in 11 U.S.C. § 507(a)(7)(A)(ii) runs during the pendency of the first of two successive bankruptcies. See, e.g., In re Linder, 139 B.R. 950, 952-53 (D.Colo.1992) (holding that 26 U.S.C. §§ 6503(b) and (h) apply to the Bankruptcy Code through 11 U.S.C. § 108(c), thereby tolling the 240-day assessment period in 11 U.S.C. § 507(a)(7)(A)(ii)); In re West, 137 B.R. 1012, 1016 (D.Ore.1992) (holding that although the 240-day assessment period had expired, In re Brickley, 70 B.R. 113 (Bankr. 9th Cir.1986) required that the IRS be given an additional six months in which to collect the tax debt); In re Worthen, 137 B.R. 1016, 1020 (D.Ore.1992) (same); In re Deitz, 116 B.R. 792 (D.Colo.1990) (holding that 11 U.S.C. § 108 and 26 U.S.C. § 6503, in combination, suspended the 240-day assessment period); In re Molina, 99 B.R. 792 (S.D. Ohio" }, { "docid": "22026400", "title": "", "text": "filing for bankruptcy were given seventh priority. § 507(a). The filing of the debtor’s petition for relief triggers the automatic stay as to “any act to collect, assess, or recover a claim against the debtor that arose before the commencement” of the bankruptcy proceeding. § 362(a)(6). The stay remains in effect until the debtor obtains a discharge or the case is closed or dismissed. § 362(c)(2). No discharge can be issued in a Chapter 13 case until the debtor completes payments or is granted a hardship discharge. § 1328(b)(1). The IRS was completely barred from collecting its pre-bankruptcy tax claims during the pendency of the automatic stay under § 362(a). No discharge occurred in the earlier Michigan bankruptcy proceeding. By excepting tax priorities from discharge, Congress intended to “discourage recourse to, bankruptcy as a facile device for evading tax obligations.” S.Rep. No. 1158, 89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S.C.C.A.N. 2468, 2470 (describing the effect of similar provisions under former Bankruptcy Act). It would be an absurd result if a debtor, rather than obtaining a complete discharge by paying a priority claim, could avoid the three-year lookback period by voluntarily dismissing a bankruptcy proceeding and thereafter urging that a portion of the three-year period has lapsed. Surely Congress did not intend to tie the government’s hands and then chide it for not throwing its stone. Federal tolling provisions in general reflect a congressional concern that both creditors generally and the government in particular have adequate time to collect their debts. Section 108(e) of the Bankruptcy Code “extends the statute of limitations for creditors in actions against the debtor, where the creditor is hampered from proceeding outside the bankruptcy court due to the [automatic stay] provisions of 11 U.S.C. § 362.” In re Brick-ley, 70 B.R. 113, 115 (9th Cir. BAP 1986). Likewise, § 6503(h) of the Internal Revenue Code suspends the tax collection limitation period while the debtor’s assets are in the custody or control of any court and for an additional six months after dismissal of the debtor’s case. The House Report’s discussion of § 507" }, { "docid": "5238236", "title": "", "text": "under section 507(a)(7) is an exception to any discharge granted a debtor. Matter of Florence, 115 B.R. 109 (Bankr.S.D.Ohio 1990). See also 11 U.S.C. § 1322(a)(2). This permits the IRS three (3) years to collect its taxes. Thus, if a taxpayer files a bankruptcy case after this three-year period, the still uncollected tax debt is discharged. In re Brickley, 70 B.R. 113, 114 (9th Cir.B.A.P.1986). In the present case, since the relevant tax years are 1985 and 1986, and the Chapter 13 petition was filed on April 19, 1990, debtor contends that the three-year collection period for the IRS has expired, and the tax debt is dischargeable. The IRS, on the other hand, points out that during the pendency of debtor’s prior Chapter 7 case, debtor's assets were protected by the automatic stay. See 11 U.S.C. § 362(a). Consequently, during the relevant time period between October 21, 1987 and October 6, 1989, the IRS could take no action to compel debtor to pay her tax obligations for the 1985 and 1986 tax years. The IRS argues that it should be allowed additional time to pursue the debt- or because the limitation of a non-bankruptcy action stayed by the bankruptcy proceeding is tolled during the pendency of the bankruptcy case. 11 U.S.C. § 108(c). This provision extends the statute of limitations for creditors in actions against the debtor when the creditor is prevented from proceeding outside the bankruptcy court because of the automatic stay provision in section 362. In re Brickley, 70 B.R. at 115. The IRS further argues that section 6503(b) of the IRC provides that, “[t]he period of limitations on collection after assessment prescribed in [section] 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court of the United States ... and for six months thereafter.” 26 U.S.C. § 6503(b). Under section 6503(b), the statute of limitations in section 6502 for the collection of taxes is suspended for any period the taxpayer’s assets are in control of the courts plus an additional six months. See United States v." }, { "docid": "22947424", "title": "", "text": "Revenue and Bankruptcy Codes to collect the unpaid taxes, and therefore the debts were nondischargeable. II. Under Chapter 7 of the Bankruptcy Code a debtor may, with certain exceptions, be discharged from all debts incurred before a bankruptcy petition is filed. 11 U.S.C. § 727(b). Exceptions are found in § 523 which renders nondischargeable debts which are entitled to priority under § 507 of the Code. 11 U.S.C. § 523(a)(1)(A). Section 507 mandates that taxes due within three years of the bankruptcy petition are not dischargeable. 11 U.S.C. § 507(a)(7)(A)(i). Therefore, absent the Chapter 11 proceeding the Montoyas’ tax debt would have been discharged because the last date on which the their tax returns could have been filed fell outside the three-year nondischargeability or what the parties have called the “look-back” period. The Chapter 11 and first Chapter 7 proceedings, however, affect this calculation. Under § 362 of the Bankruptcy Code, an automatic stay is imposed on all creditors’ actions against the debtor until the time of confirmation, so that between March 11, 1983 and January 14, 1985, and February 15, 1989 and July 12, 1989, the IRS was prohibited from collecting any taxes. Section 108(c) of the Code extends the time creditors have to collect claims that have been stayed by a bankruptcy proceeding. This section provides that an unexpired nonbankruptcy statute of limitations continues for 30 days after the stay has been lifted or until the limitations period has expired, whichever is later. Parallel provisions to § 108(c) are found in § 6503 of the Internal Revenue Code. The IRS generally has three years to assess and six years to collect taxes. 26 U.S.C. §§ 6501 and 6502. These limitations periods are tolled when the taxpayer’s assets are tied up in a court proceeding and for an additional six months. 26 U.S.C. § 6503(b). Section 6503(h) specifically suspends the time for assessing or collecting taxes when the IRS is precluded from acting because of a pending bankruptcy case. Under the analysis of both the bankruptcy and district courts, the IRS claims were frozen for significant periods between the" }, { "docid": "21019850", "title": "", "text": "taxpayer from running while his assets are in the control or custody of a court and for 6 months thereafter (sec.6503(b) of thé Code). The amendment applies this rule in a title 11 proceeding. Accordingly, the statute of limitations on collection of a nondischargeable Federal tax liability of a debtor will resume running after 6 months following the end of the period during which the debtor’s assets are in the control or custody of the bankruptcy court. This rule will provide the Internal Revenue Service adequate time to collect nondischargeable taxes following the end of the title 11 proceedings. S.Rep. No. 95-989, at 31 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5816-17. Although the plain language of section 108(c) states that it tolls priority periods only in nonbankruptcy cases, we conclude that Congress intended 11 U.S.C. § 108(c) and 26 U.S.C. § 6503(b) and (h) to toll the three-year priority period of 11 U.S.C. § 507(a)(8)(A)(i). Therefore, because the automatic stay prevented the IRS from collecting Waugh’s tax debt from July 1, 1988 until February 6, 1991, the three-year priority period of section 507(a)(8)(A)® was suspended during that time. The majority of courts which have decided this issue have similarly determined that 11 U.S.C. § 108(c) and 26 U.S.C. § 6503(b) and (h) operate to suspend the three-year priority period of 11 U.S.C. § 507(a)(8)(A)(i). Most recently, the Court of Appeals for the Third Circuit recognized that “[t]o limit § 507(a) in this regard would lead to absurd results, as the government would lose its priority claim to back taxes as a result of the taxpayer’s abuse of the bankruptcy process.” In re Taylor, 81 F.3d 20, 23 (3d Cir.1996). For example, in Waugh’s case, the automatic stay prevented the IRS from collecting Waugh’s 1987 taxes from July 1, 1988, until February 6, 1991. See 11 U.S.C. § 362(a)(6) (1994). Consequently, not even three months had passed from the time Waugh filed his tax return on April 16, 1988, until the IRS was stayed from collecting taxes on July 1, 1988. Were we to adopt Waugh’s limited interpretation of 507(a)(8)(A)(i)’s priority" }, { "docid": "12573339", "title": "", "text": "believed that the IRS’s claims were defunct by November 5, 1990. So they were — if measured from the dates of assessment in 1982 and 1983. But the IRS relies on 26 U.S.C. § 6503(h): The running of the period of limitations provided in section 6501 or 6502 on the making of assessments or collection shall, in a ease under title 11 of the United States Code, be suspended for the period during which the Secretary is prohibited by reason of such ease from making assessment or from collecting and— (1) for assessment, 60 days thereafter, and (2) for collection, 6 months thereafter. The IRS believes that it was prohibited by “title 11 of the United States Code” — that is, by the Bankruptcy Code of 1978 — from collecting the taxes during the bankruptcy and for as long as Empire Wood was making payments under the plan of reorganization. So much seems clear. The IRS was subject to the automatic stay; it filed a claim in the bankruptcy; its debt was scheduled; the terms of the plan of reorganization replaced the terms of the prior debts, In re Jartran, Inc., 886 F.2d 859 (7th Cir.1989); the IRS had to abide by the terms of the plan and could not swoop in to seize assets as soon as the plan had been confirmed. 11 U.S.C. § 1141(a). Cf. In re Penrod, 50 F.3d 459 (7th Cir.1995). Not until Empire Wood turned turtle in 1985 could the IRS levy on the assessments. Less than six years remained before November 5, 1990. The district court allowed that under this line of reasoning the IRS could have proceeded against Empire Wood in 1993. But it thought § 6503(h) inapplicable to the Wrights. They were not debtors in bankruptcy, and the United States could have collected from them in 1983. The automatic stay does not apply to guarantors, sureties, insurers, partners, and other persons liable on the debt. National Tax Credit Partners, L.P. v. Havlik, 20 F.3d 705, 707 (7th Cir.1994). Because the United States had never been “prohibited by reason of [the bankruptcy]" }, { "docid": "10500227", "title": "", "text": "before the date of the filing of the petition” in Section 507(a)(7)(A) (i and iii) to mean “after three collection years before the date of the filing of the petition. The IRS asserts that due to the automatic stay, a collection year would not run while debtor was in bankruptcy, thus, the government should be granted its ability to collect the taxes or to maintain its priority position for them in a subsequent case. The essential facts are as follows. Debtors filed a prior Chapter 13 case in 1986. The IRS filed a claim in the amount of $12,616.92 for unsecured priority taxes and interest for the three years prior to the filing. That case was dismissed in May of 1988. The IRS only received $496.54 during the case. The debtor filed the present Chapter 13 petition in October of 1988. Debtors’ plan attempts to discharge unsecured taxes for 1983 and 1984, in the 1988 case. In re Brickley determined that Section 507 was tolled while debtor’s Chapter 13 case was pending, making debtor’s tax liability under that proceeding non-discharge-able in a subsequent case. Brickley involved similar facts to the case at hand except after the debtor’s Chapter 13 case was dismissed,' debtor filed a case under Chapter 7. The Bankruptcy Appellate Panel analysis is as follows. First the Panel noted that Section 108(c) extends the statute of limitations for creditors who are unable to commence or continue a civil action against the debtor because of the automatic stay. Further, Section 6503(b) of the Internal Revenue Code suspends the limitations period on collections while the taxpayer’s assets are in control of any U.S. court and for six months thereafter. The Bankruptcy Appellate Panel’s cogent opinion next analyzed the legislative history of 11 U.S.C. § 108(c) as it applied to Federal tax liability. The Panel’s holding is based upon that analysis. The relevant portion of their ruling determined that 26 U.S.C. § 6503(b) was applicable to bankruptcy cases via 11 U.S.C. § 108(c). Hence, due to the effective suspension of the collections period set out in Sections 507, the IRS would" }, { "docid": "21019849", "title": "", "text": "571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); accord Missouri v. L.J. O’Neill Shoe Co. (In re L.J. O’Neill Shoe Co.), 64 F.3d 1146, 1150 (8th Cir.1995). However, we conclude that this is such a “rare case.” If we applied the plain meaning of section 108(c) and held that the priority period of section 507(a)(8)(A)(i) is not suspended during bankruptcy proceedings, Congress’s intent to afford the IRS a three-year priority period for the collection of taxes certainly would be frustrated. Therefore, we conclude that the three-year priority period of section 507(a)(8)(A)(i) is suspended by 11 U.S.C. § 108(c) and 26 U.S.C. § 6503(b) and (h), for the time that the automatic stay prevents the IRS from collecting outstanding tax debts. The legislative history of 11 U.S.C. § 108(c) supports the conclusion that Congress intended for section 108(c) and 26 U.S.C. § 6503(b) and (h) to suspend the priority period of section 507(a)(8)(A)(i): In the case of Federal tax liabilities, the Internal Revenue Code suspends the statute of limitations on a tax liability of a taxpayer from running while his assets are in the control or custody of a court and for 6 months thereafter (sec.6503(b) of thé Code). The amendment applies this rule in a title 11 proceeding. Accordingly, the statute of limitations on collection of a nondischargeable Federal tax liability of a debtor will resume running after 6 months following the end of the period during which the debtor’s assets are in the control or custody of the bankruptcy court. This rule will provide the Internal Revenue Service adequate time to collect nondischargeable taxes following the end of the title 11 proceedings. S.Rep. No. 95-989, at 31 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5816-17. Although the plain language of section 108(c) states that it tolls priority periods only in nonbankruptcy cases, we conclude that Congress intended 11 U.S.C. § 108(c) and 26 U.S.C. § 6503(b) and (h) to toll the three-year priority period of 11 U.S.C. § 507(a)(8)(A)(i). Therefore, because the automatic stay prevented the IRS from collecting Waugh’s tax debt from July 1, 1988 until February 6," }, { "docid": "22947429", "title": "", "text": "that the IRS claims were stayed. They argue that their tax liability should be discharged since three years and six months after the Chapter 11 plan was confirmed would have expired on July 14, 1988. The government responds that the IRS was only free to collect for two periods before the second Chapter 7 filing: between August 11, 1987, when the Chapter 11 case was closed, and February 15, 1989, when the first Chapter 7 petition was filed, and from July 12, 1989 until July 14) 1989, the period between the two Chapter 7 filings. Prior to August 11, 1987, the IRS argues that it was barred from collecting by the automatic stay and then by the provisions of the confirmed plan. Section 1141 of the Bankruptcy Code provides that the provisions of a confirmed plan are binding on both the debtor and creditors. 11 U.S.C. § 1141(a). See also Paul v. Monts, 906 F.2d 1468, 1471 (10th Cir.1990). Between April 4, 1985 and April 23, 1986, the IRS argues that it was also prevented from acting when its claims were disallowed by the bankruptcy court. We, as did the district court, find it unnecessary to consider whether the look-back period does not include any times beyond those when IRS claims were disallowed. Exclusion of this time period from calculation of the look-back period, along with the time the automatic stay was in effect, means that IRS did not have three years and six months to collect the taxes. The Montoyas argue that there is no statutory provision in either the Bankruptcy or Internal Revenue Codes that contemplates a tolling period due to a debtor’s objection to IRS claims. They contend that suspending the applicable statute of limitations during any period beyond that when the automatic stay is in place would erode the three year rule. We disagree. Nothing in § 108 or § 6503 restricts any tolling of nonbankruptcy statutes of limitations to the time a creditor is barred from acting because of the provisions of the automatic stay. Section 6503 allows for tolling because of limits imposed by" }, { "docid": "5238237", "title": "", "text": "argues that it should be allowed additional time to pursue the debt- or because the limitation of a non-bankruptcy action stayed by the bankruptcy proceeding is tolled during the pendency of the bankruptcy case. 11 U.S.C. § 108(c). This provision extends the statute of limitations for creditors in actions against the debtor when the creditor is prevented from proceeding outside the bankruptcy court because of the automatic stay provision in section 362. In re Brickley, 70 B.R. at 115. The IRS further argues that section 6503(b) of the IRC provides that, “[t]he period of limitations on collection after assessment prescribed in [section] 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court of the United States ... and for six months thereafter.” 26 U.S.C. § 6503(b). Under section 6503(b), the statute of limitations in section 6502 for the collection of taxes is suspended for any period the taxpayer’s assets are in control of the courts plus an additional six months. See United States v. Silverman, 621 F.2d 961, 965 (9th Cir.1980). Debtor argues that 11 U.S.C. § 108(c) is not relevant to this case. She contends that even if the section 108(c) time limitation for collection is extended under the various statutes cited by the government, these taxes would not, in any event, be entitled to priority payment status under section 507(a)(7) or have any bearing on dischargeability. This argument, however, ignores the legislative history preserved when the Bankruptcy Code was enacted by Congress in 1978. In discussing section 108(c) the Senate Report specifically mentioned that IRC section 6503(b) applied to bankruptcy proceedings. See S.Rep. No. 989, 95th Cong., 2d Sess. 30-31 (1978), reprinted in 1978 U.S. Code, Cong. & Admin.News, 5787, 5816, 5817. From this it appears clear that when Congress enacted section 108(c), it considered section 6503(b), and thereby also suspended the running of the statute of limitations for tax collection during a taxpayer’s bankruptcy proceeding. In re Baird, 63 B.R. 60, 62-63 (Bankr.W.D.Ky.1986). Virtually every court, upon reviewing this legislative history, has held that Congress did" }, { "docid": "22947430", "title": "", "text": "from acting when its claims were disallowed by the bankruptcy court. We, as did the district court, find it unnecessary to consider whether the look-back period does not include any times beyond those when IRS claims were disallowed. Exclusion of this time period from calculation of the look-back period, along with the time the automatic stay was in effect, means that IRS did not have three years and six months to collect the taxes. The Montoyas argue that there is no statutory provision in either the Bankruptcy or Internal Revenue Codes that contemplates a tolling period due to a debtor’s objection to IRS claims. They contend that suspending the applicable statute of limitations during any period beyond that when the automatic stay is in place would erode the three year rule. We disagree. Nothing in § 108 or § 6503 restricts any tolling of nonbankruptcy statutes of limitations to the time a creditor is barred from acting because of the provisions of the automatic stay. Section 6503 allows for tolling because of limits imposed by another court preceding or specifically a bankruptcy case without limiting this to a period in which the IRS is unable to act because of a stay. Similarly, § 108(c) suspends nonbankruptcy statutes of limitations until the stay is lifted or the statute of limitations itself expires. Excluding the time the bankruptcy court sustained the Montoya’s objection to the IRS assessments from the look-back period is consistent with the applicable statutory scheme. The tolling provisions of § 6503 are given effect in the context of a bankruptcy proceeding by § 108(c) of the Bankruptcy Code. Brickley, 70 B.R. at 115. Section 108(c) implicitly incorporates the limitations period of § 6503 by preserving nonbankruptcy statutes of limitations which have not yet expired. The relevant legislative history of § 108(c) is also clear on this point: In the case of Federal tax liabilities, the Internal Revenue Code suspends thé statute of limitations on a tax liability of a taxpayer from running while his assets are in the control or custody of a court and for 6 months thereafter...." }, { "docid": "12214585", "title": "", "text": "(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim. . I.R.C. § 6503(b) provides: (b) Assets of taxpayer in control or custody of court. — The period of limitations on collection after assessment prescribed in section 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court in any proceeding before any court ... and for 6 months thereafter. Section 6502 provides for a period of limitation within which the IRS must make collection after making a tax assessment. See I.R.C. § 6502. . I.R.C. § 6503 provides at subsection (h): (h) Cases under title 11 of the United States Code. — The running of the period of limitations provided in section 6501 and 6502 on the making of assessments or collection shall, in a case under title 11 of the United States Code, be suspended for the period during which the Secretary is prohibited by reason of such case from making the assessment or from collecting and- (1) for assessment, 60 days thereafter, and (2) for collection, 6 months thereafter. .The IRS argues at length that the legislative histories of 11 U.S.C. §§ 507(a)(8)(A)(i), 523(a)(1)(A), 108(c), and I.R.C. § 6503 show Congress’s intent to toll the § 507(a)(8)(A)(i) look-back period upon the filing of a bankruptcy petition. The BAP also relied on the legislative history of these provisions in finding congressional intent to toll the look-back period, 228 B.R. at 884-85, as have other courts. See, e.g., Waugh, 109 F.3d at 493; Taylor, 81 F.3d at 23-25. We find this analysis to be unwarranted because the plain wording of §§ 523(a)(1)(A) and 507(a)(8)(A)(i) is not ambiguous. See Koenig Sporting Goods, 203 F.3d at 988. . See supra, note 3. . See supra, note 3. . Both the IRS and the BAP raise concerns that the absence of an automatic tolling rule in § 507(a)(8)(A)(i) creates the possibility that a debtor will manipulate the bankruptcy system" }, { "docid": "22947425", "title": "", "text": "January 14, 1985, and February 15, 1989 and July 12, 1989, the IRS was prohibited from collecting any taxes. Section 108(c) of the Code extends the time creditors have to collect claims that have been stayed by a bankruptcy proceeding. This section provides that an unexpired nonbankruptcy statute of limitations continues for 30 days after the stay has been lifted or until the limitations period has expired, whichever is later. Parallel provisions to § 108(c) are found in § 6503 of the Internal Revenue Code. The IRS generally has three years to assess and six years to collect taxes. 26 U.S.C. §§ 6501 and 6502. These limitations periods are tolled when the taxpayer’s assets are tied up in a court proceeding and for an additional six months. 26 U.S.C. § 6503(b). Section 6503(h) specifically suspends the time for assessing or collecting taxes when the IRS is precluded from acting because of a pending bankruptcy case. Under the analysis of both the bankruptcy and district courts, the IRS claims were frozen for significant periods between the Chapter 11 filing and the present Chapter 7 case, though each computed those periods slightly differently. The bankruptcy court concluded that, in addition to the time the automatic stay was in place, the IRS was also prevented from pursuing its claims between the confirmation of the Chapter 11 plan and the date of the Montoyas’ objection because it found that the IRS was bound by the provisions of the confirmed plan. The bankruptcy court also concluded that the statute of limitations was suspended from the date the Montoyas’ objection was sustained until the agreed order was entered. The district court chose not to reach the question of whether the limitations period was suspended during the time the plan was in effect, but agreed with the bankruptcy court that the look-back period was tolled during the time the IRS claims were disallowed. Under either court’s analysis, the IRS did not have three years and six months to collect. III. The Montoyas do not dispute that calculation of the lookback period in the pending Chapter 7 case" }, { "docid": "22947431", "title": "", "text": "another court preceding or specifically a bankruptcy case without limiting this to a period in which the IRS is unable to act because of a stay. Similarly, § 108(c) suspends nonbankruptcy statutes of limitations until the stay is lifted or the statute of limitations itself expires. Excluding the time the bankruptcy court sustained the Montoya’s objection to the IRS assessments from the look-back period is consistent with the applicable statutory scheme. The tolling provisions of § 6503 are given effect in the context of a bankruptcy proceeding by § 108(c) of the Bankruptcy Code. Brickley, 70 B.R. at 115. Section 108(c) implicitly incorporates the limitations period of § 6503 by preserving nonbankruptcy statutes of limitations which have not yet expired. The relevant legislative history of § 108(c) is also clear on this point: In the case of Federal tax liabilities, the Internal Revenue Code suspends thé statute of limitations on a tax liability of a taxpayer from running while his assets are in the control or custody of a court and for 6 months thereafter.... The amendment applies this rule in a title 11 proceeding. Accordingly, the statute of limitations on collection of a nondis-chargeable Federal tax liability of a debt- or will resume running after 6 months following the end of the period during which the debtor’s assets are in the control or custody of the bankruptcy court. This rule will provide the Internal Revenue Service with adequate time to collect nondischargeable taxes following the end of the title 11 proceedings. S.Rep. No. 989, 95th Cong., 2nd Sess. 30-31 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5816-5817. It would be similarly inconsistent with the intent of § 108(c) to fail to exclude from the look-back period the time the IRS claims were disallowed as to charge the IRS for the time the automatic stay was in place. The IRS was as equally barred from acting when the disallowance was in place as it was when its claims were stayed. The Montoyas argue that, since during the time their objection was sustained the IRS was able to apply over-payments" }, { "docid": "14362650", "title": "", "text": "case of successive bankruptcy petitions preserves this intent. V. Conclusion The debtors’ joint Chapter 13 case suspended the running of § 507(a)(7)(A)(ii)’s 240-day priority period from the date of the bankruptcy petition until. six months after the case was dismissed. The IRS claims are therefore entitled to priority. AFFIRMED. . \"(a) The following expenses and claims have priority in the following order: ... (7) Seventh, allowed unsecured claims of governmental units, only to the extent such claims are for— (A) a tax on or measured by income or gross receipts— ... (ii) assessed within 240 days, plus any time plus 30 days during which an offer in compromise with respect to such tax that was made within 240 days after such assessment was pending, before the date of the filing of the petition.” 11 U.S.C. § 507(a)(7)(A)(ii) (1988). . ”[I]f applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, ... and such period has not expired before the date of the filing of the petition, then such period does not expire until ... the end of such period, including any suspension of such period occurring on or after the commencement of the case.” 11 U.S.C. § 108(c)(1) (1988). .\"The running of the period of limitations ... on the making of assessments or collection shall, in a case under [the Bankruptcy Code], be sus- . pended for the period during which the [IRS] is prohibited by reason of such case from making the assessment or from collection and ... [for] 6 months thereafter.” 26 U.S.C. § 6503(h)(2) (Supp.1990). The IRS may not collect tax claims against a debtor in bankruptcy unless it obtains relief from the automatic stay. See 11 U.S.C. § 362(a)(6) (1988). Because such relief is rarely granted, the IRS usually is \"prohibited by reason of such case” from collecting taxes until the bankruptcy petition is dismissed. Under § 6503(h)(2), therefore, the collection limitation period usually does not begin to run until six months after dismissal. . \"[A] court should" } ]

[ { "docid": "9771531", "title": "", "text": "the insurer from asserting failure to exhaust the arbitration provisions. The filing of an answer on the merits does not automatically exclude resort to arbitration. E. g. General Guaranty Insurance Company v. New Orleans General Agency, Inc., 5 Cir., 427 F.2d 924, 929. The question of waiver turns on the presence or absence of prejudice. Carcich v. Rederi A/B Nordie, supra, at 696. The answer included a demand for arbitration. We find no prejudice to the insured and no waiver of arbitration. Policy Condition 14 relating to court actions is said to be inconsistent with Condition 3 relating to arbitration. We find no inconsistency. The purpose of Condition 14 is to ease possible burdens which the insured might encounter in obtaining jurisdiction over the insurer, which is incorporated under the laws of England and has its principal place of business in London. The assent of the insurer to jurisdiction does not prevent it from raising a defense based on policy terms. Error is asserted because of the court's denial of a request for an evidentiary hearing in the arbitration proceedings. The validity and interpretation of arbitration clauses affecting interstate commerce are governed by federal law. Robert Lawrence Company v. Devonshire Fabrics, Inc., 2 Cir., 271 F.2d 402, 409, cert, dismissed 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37, cf. Standard Magnesium Corporation v. Fuchs, 10 Cir., 251 F.2d 455, 458. Arbitration differs radically from litigation, and one who chooses it must be content with its informalities and looser approximations as to the enforcement of their rights. Compania Panemena Maritima San Gerassimo v. J. E. Hurley Lumber Company, 2 Cir., 244 F.2d 286, 289-290. The policy says nothing about a hearing. The referees were required to be “medical practitioners experienced in medical examinations of scheduled airline flying personnel.” These men were reasonably designated because of their expertise in, and knowledge of, the subject matter which they were to evaluate. The exercise of that expertise does not require an evidentiary hearing. Cf. Continental Materials Corporation v. Gaddis Mining Company, 10 Cir., 306 F.2d 952, 956. After our remand, the insurer appointed" } ]

[ { "docid": "21891865", "title": "", "text": "112 (S.D.N.Y.1974) ; Noble v. Desco Shoe Corp., 41 A.D.2d 908, 343 N.Y.S.2d 134, 136 (1973). . Bloomfield cannot, of course, be compelled to arbitrate his 10b-5 claim. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). See also Laupheimer v. McDonnell & Co., 500 F.2d 21 (2d Cir. 1974). . Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968) ; see Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). . See Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; E. I. Du Pont de Nemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328, 334 (4th Cir.), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955) ; Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318, 319 (4th Cir. 1938) ; of. Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1017-1018 (2d Cir. 1972) ; Hilti, Inc. v. Oldach, 392 F.2d 368, 372 n. 9 (1st Cir. 1968) ; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942) ; Milton Schwartz & Associates v. Magness Corp., 368 F.Supp. 749, 752 (D.Del.1974). But cf. Carolina Throwing Co. v. S. & E. Novelty Corp., 442 F.2d 329 (4th Cir. 1971). . See Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; Graig Shipping Co. v. Midland Overseas Shipping Corp., 259 F.Supp. 929, 931 (S.D.N.Y.1966) ; cf. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir. 1968) ; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 n. 40 (2d Cir. 1942)." }, { "docid": "5063242", "title": "", "text": "a subsequent answer, neither of which mentioned arbitration — even though it waited eight months to raise the issue); Sweater Bee, 754 F.2d at 459-60 (arbitration proper where defendant moved to dismiss complaint on grounds that went to the merits, moved for reargument when the prior motion was denied, engaged in discovery and in motion practice concerning discovery, and two years after the complaint was filed asserted a right to arbitration in its answer); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 694 (2d Cir. 1968) (no waiver by third-party defendant who did not assert right to arbitration for almost two years while the principal suit was litigated); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13 (2d Cir.1959), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960) (no waiver even though motion for stay was made nine months after commencement of litigation, and settlement discussions and discovery were conducted in the interim); Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir.1942) (no waiver even though party demanding arbitration did not assert it in its first answer and did not seek to include the demand in the answer until after the ease was ready for trial). Plaintiffs filed their original complaint in this action on November 21, 1990, two months after the Distributor’s Agreement expired. Simultaneously, plaintiffs moved for a preliminary injunction, but they subsequently abandoned that application. In January-1991, the time for the defendants to answer was extended to allow plaintiffs time to file an amended complaint. However, the following June, the parties agreed to enter into settlement discussions to negotiate new distributorship contracts. Six months later, in January 1992, plaintiffs filed a first amended complaint with the defendants’ consent. Settlement discussions resumed shortly thereafter and continued before Magistrate Judge Carter until the spring of 1992. The time for defendants to answer or respond was again delayed during this period. In May 1992, defendant Transervice moved to disqualify James Harmon, Jr., Esq., and the law firm Bower & Gardner as plaintiffs’ counsel. That motion was granted on June 1, 1992." }, { "docid": "22251343", "title": "", "text": "default in the light of the vigorous policy favoring arbitration. Galt v. Libbey-Owens-Ford Glass Co., 376 F.2d 711, 714 (7th Cir. 1967); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). An understanding of the same background is, in this case, relevant to both reasons assigned by the district court since the actions which caused it to find that defendant had affirmatively waived its rights to arbitration were also the causes of the delay which occurred before it moved for a stay. If such actions were reasonable under the circumstances, any consequent delay cannot amount to default. We start with the fact that defendant’s answer, in its special defense, served notice on plaintiff of the arbitration defense. Given this, the burden is heavy on one who would prove waiver. Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra; Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945). Nor did defendant here irrevocably lock litigious horns by filing a counterclaim, as in American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6th Cir. 1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949) or Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318 (4th Cir. 1938). It had, however, two large size problems. To begin with, it was put on notice that plaintiff was challenging the continued existence of the contract containing the arbitration clause. On January 7, 1966, plaintiff’s attorney filed an affidavit averring that the contract of September 5, 1958 was never relied upon by the parties and that it was “abandoned almost immediately”. A month later another affidavit stated that the contract was “abandoned * * * at its very inception [and] has been and is a nullity * * Four months later the plaintiff swore that the contract was “mutually abandoned at its inception”. We now have the recent guidance from the Supreme Court that “ * * * a" }, { "docid": "22117357", "title": "", "text": "of its dispute with World Bulk. Pursuant to Rule 14 it could have moved for a severance of the third-party claim and for arbitration of the severed claim. Either course of action would have afforded Jordan protection of its rights in this lawsuit and would have preserved its claim that it was entitled to have certain issues tried by arbitration. Instead, Jordan proceeded to file cross-claims against World Bulk, Atlantic and Pittston, participate fully in discovery, and go to trial on the merits. Whereas there is a strong federal policy favoring arbitration (see Coenen v. R. W. Pressprich & Co., 453 F.2d 1209, 1212 (2d Cir. 1972)), the right to arbitrate may be waived. Cornell & Company v. Barber & Ross Company, 123 U.S.App.D.C. 378, 360 F.2d 512 (1966). Courts have allowed some participation in a lawsuit without finding waiver. Thus, in Carcich v. Rederi A/B Nordie, 389 F.2d 692 (2d Cir. 1968), the defendant participated in discovery and pre-trial conferences before moving for a stay. It was held the defendant had not waived its right to arbitrate. See also Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). In Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689 (4th Cir. 1956), the defendant asserted a counterclaim. Before the plaintiff answered the counterclaim, the defendant, with leave of court, filed an amended answer which specifically omitted the counterclaim, and asserted the arbitration clause as a separate defense. It was held that there was no waiver because the counterclaim was not answered. See also Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291, 293 (2d Cir. 1965), where Judge Friendly said that “the earliest point at which such preclusion may be found is when the other party files an answer on the merits.” Libellant had filed a libel, then changed its mind and asserted its right to arbitrate. In Hilti, Inc. v. Oldach, 392 F.2d 368 (1st Cir." }, { "docid": "23483583", "title": "", "text": "a matter of federal substantive law. Thus, the question of whether, in contracts involving commerce, there is an agreement to arbitrate an issue or dispute upon which suit has been brought is governed by federal law. Concomitantly, questions of interpretation and construction of such arbitration agreements are similarly to be determined by reference to federal law. See Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Lecopulos, 553 F.2d 842, 845 n.4 (2d Cir. 1977); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 404-05 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Singer Co. v. Tappan Co., 403 F.Supp. 322, 328-29 (D.N.J.1975); Litton, RCS, Inc. v. Pennsylvania Turnpike Commission, 376 F.Supp. 579, 585 (E.D.Pa.1974), aff’d, 511 F.2d 1394 (3d Cir. 1975); Bigge Crane and Rigging Co. v. Docutel Corp., 371 F.Supp. 240 (E.D.N.Y.1973); Aberthaw Construction Co. v. Centre County Hospital, 366 F.Supp. 513, 514 (M.D.Pa.1973), aff’d, 503 F.2d 1398 (3d Cir. 1974). As the court in Coenen v. R. W. Pressprich & Co., 453 F.2d 1209, 1211 (2d Cir. 1972), stated, “[o]nce a dispute is covered by the [federal Arbitration] Act, federal law applies to all questions of [the arbitration agreement’s] interpretation, construction, validity, revocability, and enforceability.” Cf. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 97 S.Ct. 1907, 32 L.Ed.2d 513 (1970); Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912,1 L.Ed.2d 972 (1957). It is true that, if the parties agree that certain disputes will be submitted to arbitration and that the law of a particular jurisdiction will govern the resolution of those disputes, federal courts must effectuate that agreement. See Scherk v. Alberto-Culver, Inc., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). Cf. The Bremen v. Zapata Off-Shore Co., supra. However, whether a particular dispute is within the class of those disputes governed by the arbitration and choice of law clause" }, { "docid": "22117358", "title": "", "text": "right to arbitrate. See also Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). In Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689 (4th Cir. 1956), the defendant asserted a counterclaim. Before the plaintiff answered the counterclaim, the defendant, with leave of court, filed an amended answer which specifically omitted the counterclaim, and asserted the arbitration clause as a separate defense. It was held that there was no waiver because the counterclaim was not answered. See also Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291, 293 (2d Cir. 1965), where Judge Friendly said that “the earliest point at which such preclusion may be found is when the other party files an answer on the merits.” Libellant had filed a libel, then changed its mind and asserted its right to arbitrate. In Hilti, Inc. v. Oldach, 392 F.2d 368 (1st Cir. 1968), the defendant answered on the merits but included a special defense of arbitration, participated in discovery, and moved for summary judgment. Almost eight months later, defendant moved for a stay. It was held that there was no waiver. The court did say, however, that the result might have been different had defendant asserted a counterclaim. See also Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968). Merely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not necessarily constitute a waiver. We have found no cases, however, where arbitration has been allowed after a party has answered on the merits, asserted a cross-claim that was answered, participated in discovery, failed to move for a stay, and gone to trial on the merits. Jordan contends that by asserting the arbitration clause as an affirmative defense, it was not taking action inconsistent with its right to arbitrate. The law is clear, however, that “[i]t is not ‘inconsistency,’ but the presence or absence of prejudice which is" }, { "docid": "22251352", "title": "", "text": "has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” . There is no question but that the contract, involving as it does dealer representation of goods manufactured in Connecticut by a New York corporation and to be sold in Puerto Rico, clearly evidences “a transaction involving commerce”, 9 U.S.C. § 2; see Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). Accordingly, the Federal Arbitration Act, 9 U.S.C. §§ 1-14, and not Puerto Rico or Connecticut law, necessarily controls the disposition of appellant’s motion. Prima Paint, id. at 404-405, 87 S.Ct. 1801. . It should be noted that the two sets of interrogatories were the only discovery efforts of defendant. No interrogatories have been submitted to non-parties. There have been no depositions. Affidavits have related strictly to pre-trial motions. Cf. American Locomotive Co. v. Gyro Process Co., 185 F.2d 316 (6th Cir. 1950). . Of the eighteen months between the filing of suit and the motion for a stay, ten months had elapsed before defendant was allowed, under the stipulation, to commence discovery. While plaintiff may well complain that part of the delay was occasioned by defendant’s reluctance to give detailed replies, so may defendant complain of plaintiff’s non-responsiveness. . The cases demonstrate with marked consistency the reluctance of courts to find default despite substantial delay and intervening proceedings. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960) (9 month delay; interim settlement discussions; disputed goods tested; held: no default); Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945) (6 month delay; 7 third party defendants joined; held: no default); Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942) (9 month delay; answer amended two months before trial to assert right to arbitration; “no important intervening steps" }, { "docid": "21891864", "title": "", "text": "been prejudicial to the defendant and constitute a waiver of the arbitration provision, the existence of which was known from the very inception of the litigation. The motion of the Kobrin group is denied in all respects. . 15 U.S.C. § 78j(b) (1970). . 17 C.F.R. § 240.10b-5 (1973). . 318 F.Supp. 955 (S.D.N.Y.1970), aff’d on opinion below, 442 F.2d 1346 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 286, 30 L.Ed. 2d 254 (1971). . See Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 378 F.Supp. 112 (S.D.N.Y. 1974) ; Getter v. R. G. Dickinson & Co., 366 F.Supp. 559, 568-569 (S.D.Iowa 1973) ; Altman v. Liberty Equities Corp., 54 F.R.D. 620, 625 (S.D.N.Y.1972) ; deHaas v. Empire Petroleum Co., 286 F.Supp. 809, 815-816 (D.Colo.1968), modified on other grounds, 435 F.2d 1223 (10th Cir. 1970). . 318 F.Supp. at 958. . 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E. 2d 288 (1972). . Rubel v. Strackrow, 72 Misc.2d 734, 340 N.Y.S.2d 691 (Sup.Ct.1973). See also Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 378 F.Supp. 112 (S.D.N.Y.1974) ; Noble v. Desco Shoe Corp., 41 A.D.2d 908, 343 N.Y.S.2d 134, 136 (1973). . Bloomfield cannot, of course, be compelled to arbitrate his 10b-5 claim. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). See also Laupheimer v. McDonnell & Co., 500 F.2d 21 (2d Cir. 1974). . Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968) ; see Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). . See Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; E. I. Du Pont de Nemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328, 334 (4th Cir.), cert. denied, 349 U.S. 956, 75 S.Ct." }, { "docid": "4197520", "title": "", "text": "Orleans General Agency, Inc., 427 F.2d 924 (5 Cir. 1970); Hilti, Inc. v. Oldach, 392 F.2d 368 (1 Cir. 1968); Reynolds Jamaica Mines v. La Societe Navale Caennaise, 239 F.2d 689, 692-93 (4 Cir. 1956); Macchiavelli v. Shearson, Hammill & Co., Incorporated, 384 F.Supp. 21, 26 (E.D.Cal.1974); Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F.Supp. at 244; Milton Schwartz & Associates, Architects v. Magness Corporation, 368 F.Supp. 749 (D.Del.1974); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Maschinenbau, supra, 311 F.Supp. at 72-74; G. B. Michael v. SS Thanasis, 311 F.Supp. 170, 181-82 (N. D.Cal.1970); Commercial Metals Company v. International Union Marine Corporation, 294 F.Supp. 570, 573-74 (S.D.N.Y.1968); Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968); Lumbermens Mutual Casualty Company v. Borden Company, 268 F.Supp. 303, 311-13 (S.D.N.Y.1967); Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 667-69 (S.D.N.Y.1966); In re Tsakalotos Navigation Corp., supra, 259 F.Supp. at 212-14; Rootes Motors, Inc. v. Steamship Carina, 1964 A.M.C. 2754 (S.D.N.Y.); Cavac Compania Anonima Venezolana de Administracion y Comercio v. Board for Validation of German Bonds in United States, 189 F.Supp. 205, 208-10 (S.D.N.Y.1960); McElwee-Courbis Construction Co. v. Rife, 133 F.Supp. 790, 795 (M.D.Pa.1955); Harris Hub Bed & Spring Co. v. United Electrical, Radio & Machine Workers of America (U.E.), 121 F.Supp. 40, 42 (M.D.Pa.1954); Richard Nathan Corp. v. Diacon-Zadeh, 101 F.Supp. 428 (S.D.N.Y.1951). . Def. Reply Memo, at 3. . ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, supra, cited by defendant, is not on “all fours” with this case. There an answer had been filed and only a four-month delay ensued in seeking arbitration, during which plaintiff moved for summary judgment and defendant moved for a stay pending arbitration. The court found no waiver, as plaintiff “made no showing of prejudice resulting from the delay.” Id. at 83. Here, there is prejudice, a much longer delay, and unlike ITT, the party seeking summary judgment and arbitration are one and the same. A review of the other cases cited by defendant, included in n. 5 supra, reveals them all" }, { "docid": "13405923", "title": "", "text": "of trial (Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627, 161 A.L.R. 1420 (2d Cir. 1945)); nor only raised the claim for the first time after submission of the matter on a motion for summary judgment (United Nations Children’s Fund v. S/S Nordstern, 251 F.Supp. 833, 840 (S.D.N.Y.1965)); nor had actually litigated the matter for over five years before expressly raising the question of arbitration (Sulphur Export Corporation v. Carribean Clipper Lines, Inc., 277 F. Supp. 632, 634 (E.D.La.1968)). The defendants here clearly and ex-plicity raised their claim to arbitration at the very outset of this proceeding by including a request for same in their answer. Courts have specifically held that this factor alone is sufficient to defeat a claim of waiver. Lumbermens Mutual Casualty Co. v. Borden Co., 268 F.Supp. 303, 312 and cases cited therein (S.D. N.Y.1967). See also Robert Lawrence Company, supra, 271 F.2d at 413; Kulukundis Shipping Co., supra, 126 F.2d at 989; In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y.1966). Defendants have continued to press their claim for arbitration throughout these proceedings, and while significant delay has occurred, it is if anything more the fault of plaintiffs than of defendants and has been occasioned by informal settlement attempts rather than purposeful delay. Waiver in a situation such as this is not lightly to be inferred, particularly when sought to be raised against the defendant(s). The test of waiver is not inconsistency, but whether the objecting party has been subjected to substantial prejudice. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); Commercial Metals Co. v. International Union Marine Corp., 294 F. Supp. 570, 573 (S.D.N.Y.1968). See generally 25 A.L.R.3d 1171, Annot.: Arbitration — Delay in Asserting Right. Clearly, the plaintiffs have had ample notice of the defendants’ claim to arbitration and have suffered no prejudice other than that occasioned by their own conduct. The finding of the court in Hilti, Inc. v. Oldach, 392 F.2d 368, at 372 (1st Cir. 1968) on similar facts is dispositive of the matter before us and bears repeating here: While the district" }, { "docid": "4197519", "title": "", "text": "Belize, 25 F.Supp. 663 (S.D.N.Y.1938), appeal dismissed, 101 F.2d 1005 (2 Cir. 1939). . See Erving v. Virginia Squires Basketball Club, supra, 468 F.2d at 1068; ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, 422 F.2d 77, 82-83 (2 Cir. 1970); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696; Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13, (2 Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627-28 (2 Cir. 1945); Kulukundis Shipping Co., S/A v. Amtorg Trading Corporation, 126 F.2d 978, 989-91 (2 Cir. 1942); Germany v. River Terminal Railway Company, 477 F.2d 546 (6 Cir. 1973); Howard Hill, Inc. v. George A. Fuller Company, Inc., 473 F.2d 217 (5 Cir. 1973); Hart v. Orion Insurance Company, 453 F.2d 1358, 1360-61 (10 Cir. 1971); Carolina Throwing Company v. S & E Novelty Corporation, supra; General Guaranty Insurance Company v. New Orleans General Agency, Inc., 427 F.2d 924 (5 Cir. 1970); Hilti, Inc. v. Oldach, 392 F.2d 368 (1 Cir. 1968); Reynolds Jamaica Mines v. La Societe Navale Caennaise, 239 F.2d 689, 692-93 (4 Cir. 1956); Macchiavelli v. Shearson, Hammill & Co., Incorporated, 384 F.Supp. 21, 26 (E.D.Cal.1974); Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F.Supp. at 244; Milton Schwartz & Associates, Architects v. Magness Corporation, 368 F.Supp. 749 (D.Del.1974); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Maschinenbau, supra, 311 F.Supp. at 72-74; G. B. Michael v. SS Thanasis, 311 F.Supp. 170, 181-82 (N. D.Cal.1970); Commercial Metals Company v. International Union Marine Corporation, 294 F.Supp. 570, 573-74 (S.D.N.Y.1968); Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968); Lumbermens Mutual Casualty Company v. Borden Company, 268 F.Supp. 303, 311-13 (S.D.N.Y.1967); Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 667-69 (S.D.N.Y.1966); In re Tsakalotos Navigation Corp., supra, 259 F.Supp. at 212-14; Rootes Motors, Inc. v. Steamship Carina, 1964 A.M.C. 2754 (S.D.N.Y.); Cavac Compania Anonima Venezolana de Administracion" }, { "docid": "16683893", "title": "", "text": "usually a defendant, has waived its arbitration right, federal courts typically have looked to whether the party has actually participated in the lawsuit or has taken other action inconsistent with his right, Cornell & Company v. Barber & Ross Company, supra, 360 F.2d at 513; whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit by the time an intention to arbitrate was communicated by the defendant to the plaintiff, Cornell & Company, 242 F.Supp. at 826 (D.D.C.), aff’d, 360 F.2d 512; whether there has been a long delay in seeking a stay or whether the enforcement of arbitration was brought up when trial was near at hand, General Guaranty Ins. Co. v. New Orleans General Agency, Inc., 427 F.2d 924, 928 n.4 (5th Cir.); Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 413 (2d Cir.), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37; American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115, 121 (6th Cir.), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074; E. T. Simonds Const. Co. v. Local 1330 of Int. Hod Carriers, etc., 315 F.2d 291 (7th Cir.); Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318 (4th Cir.). Other relevant factors are whether the defendants have invoked the jurisdiction of the court by filing a counterclaim without asking for a stay of the proceedings, American Locomotive Co. v. Chemical Research Corp., supra, 171 F.2d at 121; Radiator Specialty Co. v. Cannon Mills, supra, 97 F.2d at 319; Hilti, Inc. v. Oldach, 392 F.2d 368, 370-71, 372 n.9 (1st Cir.); whether important intervening steps [e. g., taking advantage of judicial discovery procedures not available in arbitration, see Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n.7 (2d Cir.)] had taken place, Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir.); and whether the other party was affected, misled, or prejudiced by the delay, Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d at 989; Local 198, United Rubber, C. L. & P. Wkrs. v." }, { "docid": "4197508", "title": "", "text": "or the breach or performance thereof . . . .” Defendant claims that these agreements to arbitrate are within the scope of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., as contracts “evidencing a transaction involving commerce” within the meaning of 9 U.S.C. § 2. Relying on Conley v. San Carlo Oyera Co., 163 F.2d 310 (2 Cir. 1947), and defendant’s prior allegedly inconsistent position in Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 53 F.R.D. 647 (E.D.N.Y.), plaintiffs suggest the claims are not arbitrable. The court cannot subscribe to plaintiffs’ view, which in any event, was not strongly pressed. Even they acknowledge that the term “commerce,” as used in the Federal Arbitration Act, is broadly construed. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401-02 n. 7, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). And the Second Circuit’s earlier construction in San Carlo has been limited strictly to its facts, if not entirely vitiated in light of Prima Paint. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1068-69 (2 Cir. 1972). Here, the arbitration provisions are within contracts which, as is clear from the court’s review of the summary judgment motion, evidence extensive commercial dealings between the parties across international boundaries, including, inter alia, the granting of franchises by a New York corporation to foreign corporations, to be exercised in the foreign jurisdiction. That is sufficient to fall within the definition “commerce among the several States or with foreign nations” used in 9 U.S.C. § 1, also the definition of “commerce” for purposes of 9 U.S.C. § 2. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. See Bigge Crane & Rigging Co. r. Docutel Corporation, 371 F.Supp. 240, 243 (E.D.N.Y.1973); Batson Yarn and Fabrics Machinery Group, Inc. r. Saurer-Allma GmbH-Allgauer Maschinenbau, 311 F.Supp. 68, 70 (D.S.C.1970). II. The more seriously contested issue here is waiver. Both sides acknowledge that the contractual right to arbitrate can be waived. Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2 Cir. 1972); Cornell & Company v. Barber" }, { "docid": "22317003", "title": "", "text": "is not necessarily before us. Certainly this is not a case like Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., supra, 2 Cir., 126 F.2d 978, where the defendant denied ever agreeing to anything. Naturally such a question had first to be settled before arbitration could be directed. But it is remarkably similar to Almacenes Fernandez, S.A. v. Golodetz, 2 Cir., 1945, 148 F.2d 625, where “fraud in the performance” was held to be an arbitrable question. See also Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 4 Cir., 1956, 239 F.2d 689; McElwee-Courbis Construction Co. v. Rife, D.C.M.D.Pa. 1955, 133 F.Supp. 790. The issue of fraud in the procurement of the contract was evidently litigated by consent in Kentucky River Mills v. Jackson, supra, 6 Cir., 206 F.2d 111, 120, certiorari denied 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 392, but the broad dictum at page 120 of 206 F.2d would seem to indicate that the charge of fraud must in every case be judicially tried and disposed of. If this be a fair interpretation of the language of the opinion we think it too broad and we disagree with it. In the view we take of the case before us it is immaterial that Lawrence claims to have rescinded the contract and that Devonshire disputed this claim and asserts that Lawrence by later inconsistent acts waived any right to rescind. We say there was a valid agreement to arbitrate, that all that remains is to construe the agreement and that the controversy over fraud in the inducement, whether Lawrence affirmed or dis-affirmed the contract and attempted to or did rescind it, is a “complaint, controversy or question” which arose “with respect to this contract.” What is the proper construction and interpretation of the arbitration clause? Did the parties intend the arbitration proceedings to encompass a charge of fraud in the inducement to make the principal contract for delivery of the merchandise? We think it is clear that the parties did just that. It would be hard to imagine an arbitration clause having greater scope than the" }, { "docid": "22251353", "title": "", "text": "months between the filing of suit and the motion for a stay, ten months had elapsed before defendant was allowed, under the stipulation, to commence discovery. While plaintiff may well complain that part of the delay was occasioned by defendant’s reluctance to give detailed replies, so may defendant complain of plaintiff’s non-responsiveness. . The cases demonstrate with marked consistency the reluctance of courts to find default despite substantial delay and intervening proceedings. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960) (9 month delay; interim settlement discussions; disputed goods tested; held: no default); Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945) (6 month delay; 7 third party defendants joined; held: no default); Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942) (9 month delay; answer amended two months before trial to assert right to arbitration; “no important intervening steps * * * taken”; held: no default); Lumbermens Mut. Cas. Co. v. Borden Co., 268 F.Supp. 303 (S.D.N.Y.1967) (motion for stay of proceedings delayed two years; no direct dispute between plaintiff and movant until some 21 months after suit initiated; answer never filed; discovery initiated by plaintiff; held: no default). To be distinguished are cases where a defendant initially failed to assert his arbitration defense, asserted a counterclaim and only later sought arbitration, American Locomotive Co. v. Chemical Research Corp., supra; Barber & Ross Co. v. Cornell & Co., 242 F.Supp. 825 (D.D.C.1965), aff’d 123 U.S.App.D.C. 378, 360 F.2d 512 (D.C.Cir. 1966), or where a plaintiff sought to stay his own action pending arbitration, Gallon Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411 (7th Cir. 1942); The Belize, 25 F.Supp. 663 (S.D.N.Y.1938)." }, { "docid": "4197518", "title": "", "text": "Construction Company, supra, 436 F.2d at 408-09; Cornell & Company v. Barber & Ross Company, supra; E. I. du Pont de Nemours & Company v. Lyles & Lang Construction Company, 219 F.2d 328, 334 (4 Cir.) (dictum), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955); American Locomotive Co. v. Gyro Process Co., supra; American Locomotive Co. v. Chemical Research Corporation, 171 F.2d 115, 121-22 (6 Cir. 1948); cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411, 413 (7 Cir. 1942); Radiator Specialty Co. v. Cannon Mills, supra; La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, supra; Liggett & Myers Incorporated v. Bloomfield, supra; Graig Shipping Co. v. Midland Overseas Shipping Corporation, 259 F.Supp. 929 (S.D.N.Y.1966); United Nations Children’s Fund v. S/S Nordstern, supra; Instituto Cubano de Establizacion Del Azucar v. The S/S Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956); Cargo Carriers v. Erie & St. Lawrence Corp., 105 F.Supp. 638 (W.D.N.Y.1952); The Belize, 25 F.Supp. 663 (S.D.N.Y.1938), appeal dismissed, 101 F.2d 1005 (2 Cir. 1939). . See Erving v. Virginia Squires Basketball Club, supra, 468 F.2d at 1068; ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, 422 F.2d 77, 82-83 (2 Cir. 1970); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696; Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13, (2 Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627-28 (2 Cir. 1945); Kulukundis Shipping Co., S/A v. Amtorg Trading Corporation, 126 F.2d 978, 989-91 (2 Cir. 1942); Germany v. River Terminal Railway Company, 477 F.2d 546 (6 Cir. 1973); Howard Hill, Inc. v. George A. Fuller Company, Inc., 473 F.2d 217 (5 Cir. 1973); Hart v. Orion Insurance Company, 453 F.2d 1358, 1360-61 (10 Cir. 1971); Carolina Throwing Company v. S & E Novelty Corporation, supra; General Guaranty Insurance Company v. New" }, { "docid": "23483582", "title": "", "text": "alleged obligation to renew the distribution agreement arose not from the 1974 Agreement, but rather from a separate and distinct oral agreement. The court held that disputes arising out of this independent oral contract were not subject to the arbitration clause of the 1974 Agreement. All the defendants except Amanda have appealed. II A There has been much discussion by the parties concerning the applicability of German law or Pennsylvania law in the resolution of this dispute. It may well be that the question of which law is to be applied will have to be answered in deciding the merits of the underlying controversy. However the case before us presents only the issue of the arbitrability of that controversy. When a contract involves “commerce”, as this one does, whether a “suit or proceeding is referable to arbitration . under an agreement [to arbitrate]” pursuant to the federal Arbitration Act, 9 U.S.C. § 3, or to the Convention on Recognition and Enforcement of Foreign Arbitral Awards, Art. II, 13 and 9 U.S.C. § 206, is clearly a matter of federal substantive law. Thus, the question of whether, in contracts involving commerce, there is an agreement to arbitrate an issue or dispute upon which suit has been brought is governed by federal law. Concomitantly, questions of interpretation and construction of such arbitration agreements are similarly to be determined by reference to federal law. See Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Lecopulos, 553 F.2d 842, 845 n.4 (2d Cir. 1977); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 404-05 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Singer Co. v. Tappan Co., 403 F.Supp. 322, 328-29 (D.N.J.1975); Litton, RCS, Inc. v. Pennsylvania Turnpike Commission, 376 F.Supp. 579, 585 (E.D.Pa.1974), aff’d, 511 F.2d 1394 (3d Cir. 1975); Bigge Crane and Rigging Co. v. Docutel Corp., 371 F.Supp. 240 (E.D.N.Y.1973); Aberthaw Construction Co. v." }, { "docid": "4197509", "title": "", "text": "468 F.2d 1064, 1068-69 (2 Cir. 1972). Here, the arbitration provisions are within contracts which, as is clear from the court’s review of the summary judgment motion, evidence extensive commercial dealings between the parties across international boundaries, including, inter alia, the granting of franchises by a New York corporation to foreign corporations, to be exercised in the foreign jurisdiction. That is sufficient to fall within the definition “commerce among the several States or with foreign nations” used in 9 U.S.C. § 1, also the definition of “commerce” for purposes of 9 U.S.C. § 2. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. See Bigge Crane & Rigging Co. r. Docutel Corporation, 371 F.Supp. 240, 243 (E.D.N.Y.1973); Batson Yarn and Fabrics Machinery Group, Inc. r. Saurer-Allma GmbH-Allgauer Maschinenbau, 311 F.Supp. 68, 70 (D.S.C.1970). II. The more seriously contested issue here is waiver. Both sides acknowledge that the contractual right to arbitrate can be waived. Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2 Cir. 1972); Cornell & Company v. Barber & Ross Company, 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). Since there is a strong federal policy favoring arbitration, id., a waiver “is not to be lightly inferred, and mere delay in seeking a stay of the proceedings with out some resultant prejudice to a party . cannot carry the day.” Car-cich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2 Cir. 1968) (citation and footnotes omitted); Liggett & Myers Incorporated v. Bloomfield, 380 F.Supp. 1044, 1047 (S.D.N.Y.1974). And where, as here, the issue of waiver turns on the significance of actions taken in a judicial forum, the issue is one for the court, rather than the arbitrator, to decide. See In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y. 1966). General formulations of what constitutes a waiver in a particular case are of limited usefulness, as the decision normally turns not on some mechanical act but on all the facts of the case. Carolina Throwing Company v. S & E Novelty Corporation, 442 F.2d 329, 330-31 (4 Cir. 1971); Burton-Dixie Corporation v." }, { "docid": "10888885", "title": "", "text": "issue * * * for there is an overriding federal policy favoring arbitration.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). The plaintiff here has made no showing of any prejudice resulting to it from a stay of this suit pending the outcome of the arbitration proceedings. Therefore, the motion of defendant is granted, provided, however, that the plaintiff will be permitted to return to this Court for such further relief as is appropriate if the defendant does not pursue the arbitration with due diligence. So ordered. . Yet the law is clear that participation in a law suit, standing alone, does not constitute a waiver; Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291 (2d Cir. 1965) (filing complaint not waiver); Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689 (4th Cir. 1956) (asserting counterclaim not waiver); Rootes Motors, Inc. v. SS Carina, 1964 A.M.C. 2754 (S.D.N.Y.1964) (filing answer without mentioning arbitration not waiver); Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942) (assenting to statement of readiness for trial and to placing of case on ready day calendar not waiver). Contra, T. J. Stevenson & Co. v. The M/S Dundalk Bay, 147 F.Supp. 23 (S.D.N.Y.1957); Instituto Cubano De Establizacion Del Azucar v. The SS Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956)." }, { "docid": "16749147", "title": "", "text": "at 481-82, 53 S.Ct. at 449. Although courts and commentators have read the holding in Russell narrowly, see 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3630 & n. 22 (1975), we find it persuasive in the present case. Indeed, the Court in Bouligny characterized the Russell decision as presenting the “[problem] of fitting an exotic creation of the civil law ... into a federal scheme which knew it not.” 382 U.S. at 151, 86 S.Ct. at 275. The present case raises precisely that problem. The parties have cited us no reported decision of any federal court, nor have we found any federal case, discussing whether a Liechtenstein anstalt is a juridical person for purposes of federal diversity jurisdiction. Federal courts applied section 1332(a)(2) to Liechtenstein anstalts in James Wood General Trading Establishment v. Coe, 297 F.2d 651, 652-53 (2d Cir.1961), and Baker v. Gotz, 336 F.Supp. 197, 200 (D.Del.1971), aff'd without opinion, 492 F.2d 1238 (3d Cir.), cert. denied, 417 U.S. 955, 94 S.Ct. 3084, 41 L.Ed.2d 674 (1974), but apparently no one questioned jurisdiction in either case. Indeed, federal courts have had difficulty explicitly characterizing this unique business entity. They have described anstalts as: “corporation[s] ... similar to a one-man corporation,” Kraus v. Commissioner, 59 T.C. 681, 685 (1973); “trust[s],” Ronson Corp. v. Liquifin A.G., 370 F.Supp. 597, 603 (D.N.J.), aff'd, 497 F.2d 394 (3d Cir.), cert. denied, 419 U.S. 870, 85 S.Ct. 129, 42 L.Ed.2d 108 (1974); and “business entitpes] peculiar to Liechtenstein,” United States v. Koenig, 388 F.Supp. 670, 692 (S.D.N.Y.1974). However, we need not resolve the question of which common law entity anstalts most nearly resemble. Section 1332(a)(2) applies to foreign legal entities of all kinds, so long as the entity is considered a juridical person under the law that created it. See, e.g., Fasco, A.G. v. Modernage, Inc., 311 F.Supp. 161, 162 (W.D.Pa.1970) (foreign Aktiengesellschaft creates diversity under 1332(a)(2)); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Machinebau, 311 F.Supp. 68, 70 (D.S.C.1970) (GmbH creates diversity under 1332(a)(2)). We have no doubt that Liechtenstein regards anstalts as" } ]

[ { "docid": "21018359", "title": "", "text": "U.S.C. § 908(h) (emphasis added). This is a typical problem presented in an age of statutes; the Act’s language does not squarely answer the question posed, and often enough Congress never gave a thought to the issue. Sometimes the responsible agency fills in such lacunae through regulation, but not so here. Even so, in the normal case, the agency’s individual case decisions tend to mark out a pattern that deserves substantial deference, see SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580-81, 91 L.Ed. 1995 (1947), and the agency’s application of general standards to specific facts is usually upheld if “reasonably defensible.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891, 104 S.Ct. 2803, 2808, 81 L.Ed.2d 732 (1984). The problem of deference in our case is more complicated than it is under the ordinary regulatory statute. Administrative authority under the Act has been assumed by the Secretary of Labor, 33 U.S.C. § 939, delegated to an assistant secretary, and re-delegated in turn to the director of the OWCP. 20 C.F.R. §§ 701.201-.203. But neither the Secretary nor the director reviews the decisions of the ALJs or the Review Board, which by statute are now reviewable only in the courts of appeal. 33 U.S.C. § 921(c). Thus, contrary to the usual administrative scheme, it is unclear to what extent the ALJ and Review Board reflect the policymaker’s viewpoint. Indeed, the Supreme Court has declared that “the Benefits Review Board is not a policymaking agency; its interpretation of the [Act] thus is not entitled to any special deference from the courts.” Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 515 n. 18, 66 L.Ed.2d 446 (1980); see Director, OWCP v. General Dynamics Corp., 982 F.2d 790, 794-95 (2d Cir.1992) (deference due to OWCP but not Review Board); see also Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 152-57, 111 S.Ct. 1171, 1176-79, 113 L.Ed.2d 117 (1991). Against this background, we turn to the problem at hand, which is actually a multiplicity of problems. Moves by partly disabled employees" } ]

[ { "docid": "11502745", "title": "", "text": "§ 718.204(a). II. DISCUSSION A. Standard of Review Decisions of the AU are reviewable only as to whether they are in accordance with law and supported by substantial evidence in light of the entire record. This deferential standard of review binds both the BRB and this Court. See Jordan v. Benefits Review Bd., 876 F.2d 1455, 1459 (11th Cir.1989); Stomps v. Director, OWCP, 816 F.2d 1533, 1534 (11th Cir.1987); Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511, 1515 (11th Cir.1984). Because this Court applies the same standard of review to AU decisions as does the BRB, our review of BRB decisions is de novo. “Substantial evidence” has been defined as “more than a 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) (citation and internal quotation marks omitted). It is well established that “courts must defer to an agency’s consistent interpretation of its own regulation unless it is ‘plainly erroneous or inconsistent with the regulation.’ ” Director, OWCP v. Mangifest, 826 F.2d 1318, 1323 (3d Cir.1987) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)); accord Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987). We owe this deference, however, only to the Director of the Office of Workers’ Compensation Programs of the DOL (“the Director”) as the relevant policymaker in this case; the BRB is not a policymaker and its interpretations are not entitled to any special deference. See Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980); Mangifest, 826 F.2d at 1323. B. Governing Law Generally speaking, a miner seeking black lung benefits under the Act must establish: “(1) that he suffers from pneu-moconiosis, (2) that his pneumoconiosis arose from his coal mine employment, and (3) that he is totally disabled due to the pneumoconiosis.” Mangus v. Director, OWCP, 882" }, { "docid": "15659221", "title": "", "text": "board provided by the employer [could not] be deemed a fringe benefit as the amount [was] readily calculable. These services satisfy the definition of ‘wages’ under [§ 902(13) ].” Guthrie, 30 BRBS at 50 (footnote omitted). The employer in Guthrie appealed, and the United States Court of Appeals for the Ninth Circuit reversed. In a brief per curiam opinion, the Ninth Circuit held that the LHWCA defers to the IRS definition of wages. See Wausau Ins. Cos. v. Director, OWCP, 114 F.3d 120, 121-22 (9th Cir. 1997), on recons. 136 F.3d 586 (9th Cir.1998). Defendant-Appellee Director, Office of Workers’ Compensation Programs, Department of Labor (the “Director”), joins Appellants in arguing that the value of § 119 Meals and Lodging is not included in wages under the LHWCA. The Director begins by asserting that § 902(13) is clear on its face. In the alternative, the Director argues that this court owes Chevron deference to the Director’s reasonable construction of the statute. “Because the Department of Labor has been entrusted with administering the workers’ compensation scheme of the LHWCA, its construction of that scheme should be given considerable weight.” Texports Stevedores Co. v. Director, OWCP, 931 F.2d 331, 333 (5th Cir.1991). The Director’s views are entitled to deference. See Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 (5th Cir. Unit A 1982). Indeed, deference is owed to the Director’s views and not the views of the BRB. See id. at 1046 n. 23; Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980)(“It should also be noted that the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts.”). Appellants and the Director advance three arguments in support of their position. First, they argue that the phrase “including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax” is one of expansion, explaining that the section “provides that the term “wages,’ in general, means the monetary" }, { "docid": "23533438", "title": "", "text": "BethEnergy Mines, Inc., 501 U.S. 680, 697, 111 S.Ct. 2524, 2534, 115 L.Ed.2d 604 (1991)). Notably, “[b]ecause the black lung regulations are issued by the [OWCP] rather than by the [BRB], it is to the former body rather than the latter tha[t] we owe the usual deference that courts give agencies’ interpretations of their own regulations or governing-statutes.” Sahara, 946 F.2d at 557. See also Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514-15 n. 18, 66 L.Ed.2d 446 (1980); Director, OWCP v. Barnes & Tucker Co., 969 F.2d 1524, 1527 (3d Cir.1992); Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1283 (6th Cir.1987); Bethlehem Mines Corp. v. Director, OWCP, 766 F.2d 128, 130 (3d Cir.1985). Of course, deference to an agency’s interpretation of its own regulations is warranted only when the interpretation is reasonable. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984). We may supply our own construction of a regulation if the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” Lukosevicz v. Director, OWCP, 888 F.2d 1001, 1006 (3d Cir.1989) (quotations omitted). Labelle argues that the Director’s interpretation is not faithful to the purpose or language of section 725.309(d) (material change in condition) and that we should consequently reject the Director’s interpretation. We disagree. Adoption of the Director’s interpretation accords with the principle that courts should liberally construe remedial legislation, such as the BLBA, so as to include the largest number of claimants within its entitlement provisions. See Pavesi v. Director, OWCP, 758 F.2d 956, 964. (3d Cir.1985); Echo v. Director, OWCP, 744 F.2d 327, 330 (3d Cir.1984). Because the Director’s construction of its own regulation is not unreasonable, deference should be given to that interpretation. VI. Lastly, Swarrow urges us to affirm the ALJ’s award of benefits, even if we conclude that the ALJ applied the wrong standard, under the theory that the error was harmless. We cannot agree with that disposition. The ALJ may very well decide, on remand, that all of the" }, { "docid": "15857748", "title": "", "text": "of the administrative law judge’s factual determinations.’ ” Id., citing Bumble Bee Sea Foods v. Director (OWCP), 629 F.2d 1327, 1329 (9th Cir. 1980). In Duncanson-Harrelson Co. v. Director (OWCP), 644 F.2d 827, 830 (9th Cir. 1981), this court indicated that the BRB’s determinations should be given deference since an administrative agency’s interpretation of the statute which it administers is deserving of considerable respect. 644 F.2d at 830. See, e.g., E. I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 56-57, 97 S.Ct. 2229, 2235, 53 L.Ed.2d 100 (1977), quoting, S.E.C. v. Chenery Corp., 332 U.S. 194, 209, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995 (1947). The Supreme Court, however, has noted that because the BRB does not make policy, its interpretations of the LHWCA are not entitled to any special deference. Potomac Electric Power Co. v. Director (OWCP), 449 U.S. 268, 278 n.18, 101 S.Ct. 509, 514 n.18, 66 L.Ed.2d 446 (1980). III. COVERAGE OP DECEDENT UNDER THE ACT A. Maritime Employment Before the 1972 amendments to the Act, a single geographic test (the “situs” requirement) governed coverage. An employee was entitled to benefits if he was injured while working on or over navigable waters of the United States, even though his occupation was not “maritime.” P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72, 100 S.Ct. 328, 331, 62 L.Ed.2d 225 (1979). There was also a requirement that the worker’s employer have at least one employee, not necessarily the injured one, engaged in maritime employment. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264, 97 S.Ct. 2348, 2357, 53 L.Ed.2d 320 (1977). Because most of those who employ workers for jobs on or over navigable waters also employ someone in a traditional maritime capacity, this second requirement was nearly always met, leaving the situs test as the only operative limitation on coverage. The 1972 amendments expanded the definition of “navigable waters” to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel .... ” 33 U.S.C." }, { "docid": "23632754", "title": "", "text": "process rights. STANDARD OF REVIEW Under the LHWCA, we review BRB decisions “for errors of law and for adherence to the substantial evidence standard.” See Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir.1998). The BRB must accept the ALJ’s factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3); see also Lockheed Shipbuilding v. Dir., OWCP, 951 F.2d 1143, 1144 (9th Cir.1991). “Like the [BRB], this court cannot substitute its views for the ALJ’s views.” Container Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir.1991). On questions of law, including interpretations of the LHWCA, we exercise de novo review. Gilliland v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1261 (9th Cir.2001). We need not defer to the BRB’s construction of the LHWCA, but we “must ... respect the [BRB’s] interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute.” Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)). We also “accord considerable weight to the construction of the statute urged by the Director of the [OWCP] as [s]he is charged with administering” the LHWCA. Matson Terminals, Inc. v. Berg, 279 F.3d 694, 696 (9th Cir.2002) (quoting Force v. Dir., OWCP, 938 F.2d 981, 983 (9th Cir.1991) (internal quotation marks omitted)). “We will defer to the Director’s view unless it constitutes an unreasonable reading of the statute or is contrary to legislative intent.” Id. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). BACKGROUND I. CASTRO’S EMPLOYMENT, INJURY, AND REHABILITATION PROGRAM Claimant Robert Castro worked as a carpenter and pile driver from 1973 until he was disabled due to his injury in 1998. He began work as a pile driver for General Construction in 1998. On November 20, 1998, Castro slipped and fell on a crane step, tearing the anterior cruciate ligament in his right knee. After three surgeries, Castro was released to return to light duty work in August 2000. Castro attempted to return to work at General Construction, but the job he" }, { "docid": "2563882", "title": "", "text": "in all other respects. II. DISCUSSION A. Standard of Review This Court conducts a de novo review of the BRB’s rulings of law, see H.B. Zachry Co. v. Quinones, 206 F.3d 474,'477 (5th Cir.2000), owing them no deference because the BRB is not a policy-making agency. Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980); Temporary Employment Services v. Trinity Marine Group, Inc., 261 F.3d 456, 458 (5th Cir.2001). However, we do afford deference to the Director’s interpretations of the LHWCA. Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 n. 23 (5th Cir.1982) (en banc); H.B. Zachry, 206 F.3d at 478. As the Supreme Court has recently made clear, the precise amount of deference that we owe to any given interpretation by the Director “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2172, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). With respect to disputed issues of fact, our role is more narrowly circumscribed. Like the BRB, “we may not substitute our judgment for that of the ALJ, nor reweigh or reappraise the evidence, but may only determine whether evidence exists to support the ALJ’s findings.” New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir.1997); see also 33 U.S.C. § 921(b)(3). Thus, we examine “whether the BRB properly concluded that the ALJ’s factual findings were supported by substantial evidence on the record as a whole.” James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 429 (5th Cir.2000). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); see also Director, OWCP" }, { "docid": "9919334", "title": "", "text": "had only suffered back injuries and arthritis, he could use his hands and would only be partially disabled. Similarly, if Howard had only suffered from carpal tunnel syndrome, there would have been shipyard work available, again leaving him only partially disabled. Howard’s total disability was total only because of the synergy between the two partial disabilities. Consequently, the “total disability was not ‘caused by a new traumatic injury.’ ” J.A. at 16 (quoting Cooper, 18 BRBS at 286). On appeal, the BRB, upholding the AU’s factfinding, nevertheless held that the AU misconstrued Huneycutt and Cooper. Implicit in the BRB’s holding was that Cooper and Huneycutt together stand for the proposition that it is the relatedness of the first injury to a subsequent one, rather than the relatedness of discrete injuries to the ultimate finding of total disability, that determines whether another 104-week liability period is triggered. Accordingly, because Howard’s back injuries and arthritis were totally unrelated to his carpal tunnel syndrome, § 8(f) required imposition of a new 104-week period of compensation upon Newport News. II As we understand it, Newport News makes basically two arguments in this court. First, Newport News argues that, as a matter of law, once an employer has been subjected to a 104-week period of liability under § 8(f), the employer is forever absolved from any further liability for another 104-week period. Alternatively, even if multiple workplace injuries can result in multiple 104-week liability periods, because the same pre-existing condition and injury contributed to both compensation awards, the AU properly applied Hu-neycutt to limit Newport News’ liability to one 104-week period. The proper interpretation of § 8(f) in this respect appears to be one of first impression. A The Director urges this court to adopt the BRB’s interpretation of § 8(f). Although the BRB’s interpretation is not, by itself, entitled to any special deference by the courts, see Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514, n. 18, 66 L.Ed.2d 446 (1980), because the Director heads the agency that administers and sets policy under the LHWCA," }, { "docid": "23533437", "title": "", "text": "Spese. The Director, however, urges us to adopt a different standard than the standard enunciated in Sahara: Under the Director’s interpretation, the ALJ must consider all of the new evidence, favorable and unfavorable, and determine whether the miner has proven at least one of the elements of entitlement previously adjudicated against him. If the miner establishes the existence of that element, he has demonstrated, as a matter of law, a material change. Then the ALJ must consider whether all of the record evidence, including that submitted with the previous claims, supports a finding of entitlement to benefits. Sharondale Corp. v. Ross, 42 F.3d 993, 997-98 (6th Cir.1994). The Sixth Circuit recently embraced the Director’s proposed standard after considering the Spese and Sahara standards. See id. at 998. The Sixth Circuit acknowledged that the Sahara standard was “a reasonable interpretation of material change,” id. at 997, but deferred to the DOL’s interpretation, accurately noting that “courts must defer to the agency ‘entrusted by Congress to make such policy determinations.’ ” Id. at 998 (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697, 111 S.Ct. 2524, 2534, 115 L.Ed.2d 604 (1991)). Notably, “[b]ecause the black lung regulations are issued by the [OWCP] rather than by the [BRB], it is to the former body rather than the latter tha[t] we owe the usual deference that courts give agencies’ interpretations of their own regulations or governing-statutes.” Sahara, 946 F.2d at 557. See also Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514-15 n. 18, 66 L.Ed.2d 446 (1980); Director, OWCP v. Barnes & Tucker Co., 969 F.2d 1524, 1527 (3d Cir.1992); Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1283 (6th Cir.1987); Bethlehem Mines Corp. v. Director, OWCP, 766 F.2d 128, 130 (3d Cir.1985). Of course, deference to an agency’s interpretation of its own regulations is warranted only when the interpretation is reasonable. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984). We may supply our own construction of a regulation if the" }, { "docid": "8003401", "title": "", "text": "attorney filed an amended application based on a recent change in the interpretation of the fee-shifting provision of the LHWCA. Under the new interpretation, an attorney may recover, from the employer, fees incurred before formal notice of the claim. The district director ruled on the amended fee application by awarding fees at $100 per hour and divided the fee between Ingalls and Weaver. The division held Weaver liable for $290 in fees based on work done by his attorney before March 12, 1992, thirty days after the receipt of formal notice by Ingalls. The remaining $150, representing work done after March 12, was assessed against In-galls. The BRB, sitting en banc, affirmed this decision but divided over the continued validity of Liggett to LHWCA cases. Weaver and the director appeal this decision. II. This case calls for an interpretation of the fee-shifting provision of the LHWCA, which reads in relevant part: If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation ... and the person seeking benefits thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded ... a reasonable attor ney’s fee against the employer or carrier. 33 U.S.C. § 928(a). Our review of statutory interpretation by the BRB is de novo. Equitable Equip. Co. v. Dir., OWCP, 191 F.3d 630, 631 (5th Cir.1999) (citing Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980)). Weaver and the director urge us to interpret the word “thereafter” merely to signify that the use of an attorney is a precondition to the assessment of fees against the employer. This interpretation would allow an attorney, assuming the other conditions are met, to recover fees from the employer regardless of when the attorney incurred the fees. Ingalls, on the other hand, reads “thereafter” to mean that an attorney could recover" }, { "docid": "19743084", "title": "", "text": "the Office of Workers’ Compensation Programs was that 1) Newport News should begin payments of the rating with which it had no disagreement and 2) Hassell was not required to sign the stipulations as a condition to receive compensation. (J.A. at 8.) On July 3, 2003, Hassell’s counsel submitted his LS-18 pre-hearing statement for a rating. (J.A. at 9-10.) Newport News filed a motion to compel Hassell to disclose what issues remained on October 24, 2003. (J.A. at 11-15.) The Administrative Law Judge (ALJ) granted the motion to compel on November 21, 2003. (J.A. at 35.) Hassell responded to the ALJ’s order, stating that there were no other outstanding issues. (J.A. at 56.) At the scheduled formal hearing on January 14, 2004, the parties agreed to the stipulations without the questionable language, and the ALJ entered an order based on these stipulations. (J.A. at 61-62.) Hassell’s counsel subsequently submitted a fee petition to the ALJ. (J.A. at 68.) Newport News objected to the petition, arguing that it had tendered compensation under the statute. Additionally, Newport News challenged specific entries, the hourly rate, and the specificity of the petition. The ALJ found that Newport News could not avoid liability for the fees because the “tender” did not demonstrate a willingness to pay compensation. (J.A. at 69-70.) The ALJ, however, reduced the hourly rate, reduced certain entries and disallowed other entries. (J.A. at 71.) Thereafter, Newport News appealed and Hassell cross-appealed the order of the ALJ. (J.A. at 74.) The BRB affirmed the ALJ’s decision. (J.A. at 74-78.) Newport News now petitions this Court for review of the BRB’s award of attorney’s fees. II. We review the BRB’s interpretation of the LHWCA de novo. Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). The BRB is not a policymak-ing agency; thus, its interpretation of the LHWCA is not entitled to any special deference from the Court. Id. A. Section 928(b) provides, in relevant part: If the employer or carrier pays or tenders payment of compensation without an award ... and thereafter" }, { "docid": "1200433", "title": "", "text": "Deference Rule, 45 U.Pitt.L.Rev. 587, 620-22 (1984). We owe such deference to the Director, not to the BRB, for the Director is the maker of policy. See Potomac & Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980) (requiring deference to Director not to BRB in matters of statutory interpretation); Bethlehem Mines Corp. v. Director, OWCP, 766 F.2d 128, 130 (3d Cir.1985) (requiring deference to Director not to BRB in construction of regulations). We have cautioned, however, that this deference does not permit us to defer to an “interpretation” in an adversary proceeding that strains “the plain and natural meaning of words in a standard to alleviate an unlikely and uncontemplated hazard.” Bethlehem Steel v. OSHA, 573 F.2d 157, 161 (3d Cir.1978). As the Supreme Court in Bowles deferred to the agency’s explanation of what a particular phrase in a regulation meant, we defer to a policymaker’s plausible explanation of the language in a regulation. That rule, however, does not permit the policymaker, in an adjudicatory proceeding, to imply language that simply does not exist: The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend. Bethlehem Steel, 573 F.2d at 161. Furthermore, we have in the past differentiated between a reasoned interpretation of a regulation’s language and a mere position about what the regulations require. See Bevak, 808 F.2d at 1003 (refusing to defer to agency view in absence of “any explanation for how [court] might find support for the [agency’s] position in the language of the regulation”). Although we must defer to an agency regulation that is not “plainly erroneous,” we must understand how the agency connects its position to the language of the regulation in order to evaluate its plausibility. If we cannot understand the agency’s reasoning, if it is self-contradictory, or if it is ambiguous, we cannot defer to it. In this case" }, { "docid": "19743085", "title": "", "text": "News challenged specific entries, the hourly rate, and the specificity of the petition. The ALJ found that Newport News could not avoid liability for the fees because the “tender” did not demonstrate a willingness to pay compensation. (J.A. at 69-70.) The ALJ, however, reduced the hourly rate, reduced certain entries and disallowed other entries. (J.A. at 71.) Thereafter, Newport News appealed and Hassell cross-appealed the order of the ALJ. (J.A. at 74.) The BRB affirmed the ALJ’s decision. (J.A. at 74-78.) Newport News now petitions this Court for review of the BRB’s award of attorney’s fees. II. We review the BRB’s interpretation of the LHWCA de novo. Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). The BRB is not a policymak-ing agency; thus, its interpretation of the LHWCA is not entitled to any special deference from the Court. Id. A. Section 928(b) provides, in relevant part: If the employer or carrier pays or tenders payment of compensation without an award ... and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within fourteen days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation, and thereafter utilizes the services of an attorney at law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney’s fee ... shall be awarded in addition to the amount of compensation. 33 U.S.C. § 928(b). Newport News argues that Hassell is not entitled to a fee award under this provision because Has-sell failed to obtain greater compensation by litigating" }, { "docid": "8003402", "title": "", "text": "compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation ... and the person seeking benefits thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded ... a reasonable attor ney’s fee against the employer or carrier. 33 U.S.C. § 928(a). Our review of statutory interpretation by the BRB is de novo. Equitable Equip. Co. v. Dir., OWCP, 191 F.3d 630, 631 (5th Cir.1999) (citing Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980)). Weaver and the director urge us to interpret the word “thereafter” merely to signify that the use of an attorney is a precondition to the assessment of fees against the employer. This interpretation would allow an attorney, assuming the other conditions are met, to recover fees from the employer regardless of when the attorney incurred the fees. Ingalls, on the other hand, reads “thereafter” to mean that an attorney could recover only those fees incurred after the thirtieth day following the receipt of formal notice from the commissioner. Our resolution of this question is largely controlled by precedent. In Watkins v. Ingalls Shipbuilding, Inc., 12 F.3d 209, No. 93-04367 (5th Cir. Dec. 9, 1993) (unpublished), we were asked to interpret this same section of the LHWCA. The claimant incurred attorney’s fees over an eight-month period preceding receipt of formal notice by the employer. Interpreting the statute, we held that receipt of notice by the employer was a prerequisite to the recovery of attorney’s fees. Thus, any fees incurred before receipt of such notice could not be charged against the employer. Watkins binds this panel. Tigner v. Cockrell, 264 F.3d 521, 526 (5th Cir.2001) (noting rule that one panel may not overrule an earlier panel). Accordingly, we cannot adopt the position advanced by Weaver and the director to charge all attorney’s fees of a successful claimant against the employer. The fact that Watkins is unpublished does not alter its precedential status, because it was decided before January" }, { "docid": "15659222", "title": "", "text": "the LHWCA, its construction of that scheme should be given considerable weight.” Texports Stevedores Co. v. Director, OWCP, 931 F.2d 331, 333 (5th Cir.1991). The Director’s views are entitled to deference. See Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 (5th Cir. Unit A 1982). Indeed, deference is owed to the Director’s views and not the views of the BRB. See id. at 1046 n. 23; Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980)(“It should also be noted that the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts.”). Appellants and the Director advance three arguments in support of their position. First, they argue that the phrase “including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax” is one of expansion, explaining that the section “provides that the term “wages,’ in general, means the monetary rate at which work is paid, but expands the term to also include the reasonable value of non-monetary advantages received, if subject to withholding tax.” Director’s Brief at 17. Second, they argue that the BRB’s construction of § 902(13) reads out part of the statute. Because the BRB includes in wages an advantage not subject to withholding (the value of § 119 Meals and Lodging), the limiting phrase “and included for purposes of any withholding tax” becomes superfluous. “As the Supreme Court has recognized, ‘[t]he cardinal principle of statutory construction is to save and not to destroy.’ ” Director’s Brief at 17 (quoting United States v. Menasche, 348 U.S. 528, 538, 75 S.Ct. 513, 99 L.Ed. 615 (1955)). Finally, Appellants and the Director argue that an examination of changes made to § 902(13) evinces congressional intent to exclude the value of § 119 Meals and Lodging from the definition of wages. In Morrison-Knudsen Constr. Co. v. Director, Office of Workers’ Compensation Programs, the Supreme Court held that the value of certain employer-paid fringe benefits was" }, { "docid": "15857747", "title": "", "text": "findings that decedent was engaged in maritime employment and that he was not a member of the crew of a vessel. The claimant sought review of the average weekly wage computation arguing that the ALJ erred in applying section 10(c) rather than section 10(a) of the Act in determining the amount. Claimant also urged that the ALJ erred in failing to include certain fringe benefits in the computation of decedent’s earnings. The BRB affirmed the decision of the ALJ. The parties press the same arguments in their appeal to this court. II. STANDARD OF REVIEW The Findings of Fact of the ALJ are reviewed by the BRB under the “substantial evidence” standard. 33 U.S.C. § 921(b)(3). The courts have held that the BRB must accept the ALJ’s determinations unless they are contrary to the law, irrational, or unsupported by substantial evidence. E.g., Director (OWCP) v. Campbell Industries, 678 F.2d 836, 838 (9th Cir. 1982). We must review BRB decisions for “ ‘errors of law and for adherence to the statutory standard governing the Board’s review of the administrative law judge’s factual determinations.’ ” Id., citing Bumble Bee Sea Foods v. Director (OWCP), 629 F.2d 1327, 1329 (9th Cir. 1980). In Duncanson-Harrelson Co. v. Director (OWCP), 644 F.2d 827, 830 (9th Cir. 1981), this court indicated that the BRB’s determinations should be given deference since an administrative agency’s interpretation of the statute which it administers is deserving of considerable respect. 644 F.2d at 830. See, e.g., E. I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 56-57, 97 S.Ct. 2229, 2235, 53 L.Ed.2d 100 (1977), quoting, S.E.C. v. Chenery Corp., 332 U.S. 194, 209, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995 (1947). The Supreme Court, however, has noted that because the BRB does not make policy, its interpretations of the LHWCA are not entitled to any special deference. Potomac Electric Power Co. v. Director (OWCP), 449 U.S. 268, 278 n.18, 101 S.Ct. 509, 514 n.18, 66 L.Ed.2d 446 (1980). III. COVERAGE OP DECEDENT UNDER THE ACT A. Maritime Employment Before the 1972 amendments to the Act, a single geographic" }, { "docid": "16713668", "title": "", "text": "were we to order remand, that the ALJ’s finding of rebuttal must be reversed. Maleomb is, therefore, entitled to benefits. ,. IV For the reasons stated, we reverse the order of the Board and remand with instructions for the Board to award benefits to Maleomb. REVERSED AND REMANDED. . Section 802.205(b) merely sets forth filing deadlines for cross-appeals. 20 C.F.R. § 802.-205(b). . The level of deference ordinarily owed to the Board's interpretation of regulations such as these is a difficult question. Deference is generally not accorded to the Board’s interpretation of regulations, see Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 n. 1 (4th Cir.1984); Director, OWCP v. Ball, 826 F.2d 603, 604-05 (7th Cir.1987); cf. Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980) (stating that deference should not be accorded to the Board's interpretation of a statute); Director, OWCP v. Newport News Shipbuilding and Dry Dock Co., 8 F.3d 175, 179 (4th Cir.1993) (same). But see Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1225, 1228 (4th Cir.1985) (holding, contrary to our general rule, that Board’s interpretation of a statute is entitled to deference). This general rule of not deferring to the Board's interpretation of regulations, however, was adopted in cases where the regulations that the Board had interpreted addressed the substantive law governing claimants' recoveries. The regulations in this case, by contrast, set forth the Board’s own procedural rules. If deference to the Board's interpretation of regulations is ever appropriate, it is when the regulations interpreted by the Board involve its own procedural rules. See Director, OWCP v. Hileman, 897 F.2d 1277, 1279 n. 1 (4th Cir.1990) (according deference to the Board’s interpretation of regulations that set forth its filing deadlines for en banc petitions); cf. Gray v. Director, OWCP, 943 F.2d 513, 517 (4th Cir.1991) (giving deference to the Board’s interpretation of a regulation that “regu-lat[ed] the day-to-day conduct of processing and adjudicating claims” when that interpretation had been applied consistently without objection from the Secretary). We" }, { "docid": "2563881", "title": "", "text": "to ACL surgery and to temporary total disability benefits until such time as he did attain maximum medical improvement; and that Cooper had been temporarily totally disabled from February 24, 1994 through September 2, 1994, and from January 31, 1997 through April 9, 1997, and was entitled to benefits for those periods. In two supplemental decisions, the ALJ found the petitioners liable for Cooper’s attorney’s fees pursuant to § 28(a) of the LHWCA, 33 U.S.C. § 928(a). On appeal, the BRB affirmed the AL J’s decision, but it upheld the award of attorney’s fees under § 28(b) of the LHWCA rather than under § 28(a). In conformity with 33 U.S.C. § 921(c), Pool and Signal now appeal the decision of the BRB. The Director of the OWCP (“Director”) has also filed a brief arguing that the BRB erred in affirming the ALJ’s award of benefits for the period of March 3, 1994 through September 2, 1994, and erred by awarding attorneys fees under § 28(b) rather than § 28(a) of the LHWCA, but urging affirmance in all other respects. II. DISCUSSION A. Standard of Review This Court conducts a de novo review of the BRB’s rulings of law, see H.B. Zachry Co. v. Quinones, 206 F.3d 474,'477 (5th Cir.2000), owing them no deference because the BRB is not a policy-making agency. Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980); Temporary Employment Services v. Trinity Marine Group, Inc., 261 F.3d 456, 458 (5th Cir.2001). However, we do afford deference to the Director’s interpretations of the LHWCA. Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1046 n. 23 (5th Cir.1982) (en banc); H.B. Zachry, 206 F.3d at 478. As the Supreme Court has recently made clear, the precise amount of deference that we owe to any given interpretation by the Director “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” United States v." }, { "docid": "9919335", "title": "", "text": "II As we understand it, Newport News makes basically two arguments in this court. First, Newport News argues that, as a matter of law, once an employer has been subjected to a 104-week period of liability under § 8(f), the employer is forever absolved from any further liability for another 104-week period. Alternatively, even if multiple workplace injuries can result in multiple 104-week liability periods, because the same pre-existing condition and injury contributed to both compensation awards, the AU properly applied Hu-neycutt to limit Newport News’ liability to one 104-week period. The proper interpretation of § 8(f) in this respect appears to be one of first impression. A The Director urges this court to adopt the BRB’s interpretation of § 8(f). Although the BRB’s interpretation is not, by itself, entitled to any special deference by the courts, see Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514, n. 18, 66 L.Ed.2d 446 (1980), because the Director heads the agency that administers and sets policy under the LHWCA, see 33 U.S.C. § 939(a) ( & Supp.); 20 C.F.R. § 701.202, our decision whether to adopt the Director’s interpretation, which adopts the BRB interpretation, is guided by 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). See Lukman v. Director, OWCP, 896 F.2d 1248, 1251 (10th Cir.1990) (applying Chevron analysis to the Director’s interpretation of the LHWCA as applied to a claim for black lung benefits). Under the BRB’s interpretation of § 8(f) an employer incurs liability for a single 104-week liability period for all disability arising out of the same injury or occupational disease. Conversely, an employer may incur liability for multiple 104-week liability periods when a subsequent injury is new and distinct from an earlier injury. In assessing the Director’s interpretation of § 8(f), two questions confront us as the reviewing court. First, always, we must ask whether Congress has directly addressed the precise issue in dispute. See Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. If congressional intent is clear," }, { "docid": "23632753", "title": "", "text": "SCHWARZER, Senior District Judge. General Construction Co. and Liberty Northwest Insurance Corp. (General Construction), with amicus Longshore Claims Association (LCA), petition for review of the determination of the Benefits Review Board (BRB) that claimant Robert Castro is entitled to total disability compensation under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1994) (LHWCA), during his period of participation in a vocational rehabilitation program approved by the Office of Workers’ Compensation Programs (OWCP). General Construction also claims that the method the administrative law judge (ALJ) used to calculate Castro’s average weekly wage was incorrect and that the OWCP violated General Construction’s procedural rights under the Administrative Procedure Act (APA) and the Due Process Clause of the federal Constitution. We deny the petition for review. The BRB appropriately affirmed the ALJ’s award under the LHWCA, and the ALJ’s wage calculation was correct under Ninth Circuit law. The BRB also correctly concluded that the OWCP’s failure to grant General Construction a hearing before approving Castro’s rehabilitation program did not violate General Construction’s procedural or due process rights. STANDARD OF REVIEW Under the LHWCA, we review BRB decisions “for errors of law and for adherence to the substantial evidence standard.” See Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir.1998). The BRB must accept the ALJ’s factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3); see also Lockheed Shipbuilding v. Dir., OWCP, 951 F.2d 1143, 1144 (9th Cir.1991). “Like the [BRB], this court cannot substitute its views for the ALJ’s views.” Container Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir.1991). On questions of law, including interpretations of the LHWCA, we exercise de novo review. Gilliland v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1261 (9th Cir.2001). We need not defer to the BRB’s construction of the LHWCA, but we “must ... respect the [BRB’s] interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute.” Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)). We also “accord considerable weight to the construction of the statute" }, { "docid": "1200432", "title": "", "text": "before the BRB. He stresses the need for deference to his position as the delegate of the Secretary of Labor. Three mining or insurance companies, appearing as amici curiae, support Mangifest’s contention that a noncomplying medical report can justify a finding of total disability. Mangifest, however, has abandoned any contention that Dr. Wolff’s report was not prepared in connection with a claim. Because of our construction of the regulations, we reach only some of the statutory issues presented to us. III. The Standard for Dealing with Medical Reports A. Deference The Supreme Court has made clear that courts must defer to an agency’s consistent interpretation of its own regulation unless it is “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock and Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); New Haven Bd. of Ed. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); Revak v. National Mines Corp., 808 F.2d 996 (3d Cir.1986); see generally R. Weaver, Judicial Interpretation of Administrative Regulations: The Deference Rule, 45 U.Pitt.L.Rev. 587, 620-22 (1984). We owe such deference to the Director, not to the BRB, for the Director is the maker of policy. See Potomac & Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980) (requiring deference to Director not to BRB in matters of statutory interpretation); Bethlehem Mines Corp. v. Director, OWCP, 766 F.2d 128, 130 (3d Cir.1985) (requiring deference to Director not to BRB in construction of regulations). We have cautioned, however, that this deference does not permit us to defer to an “interpretation” in an adversary proceeding that strains “the plain and natural meaning of words in a standard to alleviate an unlikely and uncontemplated hazard.” Bethlehem Steel v. OSHA, 573 F.2d 157, 161 (3d Cir.1978). As the Supreme Court in Bowles deferred to the agency’s explanation of what a particular phrase in a regulation meant, we defer to a policymaker’s plausible explanation of the language in a regulation. That rule, however, does not permit the" } ]

[ { "docid": "22682523", "title": "", "text": "declined to amend her complaint. Thereupon the trial court dismissed her complaint with prejudice, and plaintiff appealed. II. In deciding this appeal we note at the outset that the filing of a charge of discrimination with the EEOC is a condition precedent to the bringing of a civil action under Title VII. Dent v. St. Louis-San Francisco Railway Co., 5 Cir. 1969, 406 F.2d 399, 403; Choate v. Caterpillar Tractor Co., 7 Cir., 1968, 402 F.2d 357, 359; Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496, 497-498. As we have noted, two applicable time limits are set out in the statute. First, the charge of discrimination must be filed with the EEOC within ninety days of the occurrence of the alleged unlawful employment practice. 42 U.S.C.A. § 2000e — 5(d). Secondly, the civil action must be filed within thirty days after the EEOC notifies the charging party that it has been unable to obtain voluntary compliance. 42 U.S.C.A. § 2000e-5(e). Beyond these fundamentals various procedural questions have arisen, partly because “the statute leaves much to be desired in clarity and precision.” Cunningham v. Litton Industries, 9 Cir. 1969, 413 F.2d 887, 889; see Miller v. International Paper Co., 5 Cir. 1969, 408 F.2d 283, 286-287. In addition, the legislative history of Title VII is in such a confused state that it is of minimal value in its explication. See Dent v. St. Louis-San Francisco Railway Co., supra, 406 F.2d at 403; Johnson v. Seaboard Air Line Railroad Co., 4 Cir. 1968, 405 F.2d 645, cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U. S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451. The basic purposes of the Act, however, are clearly discernible. Mindful of the remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme, courts construing Title VII have been extremely reluctant to allow procedural technicalities to bar claims brought under the Act. Consequently, courts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party." } ]

[ { "docid": "8607512", "title": "", "text": "U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978) (recognizing equitable reasons for not enforcing deferral requirement); Rucker v. Great Scott Supermarkets, 528 F.2d 393 (6th Cir.1976) (“jurisdictional” requirement that plaintiff give 60 days notice of intent to file suit under ADEA may be waived when “special facts” are present); Ott v. Midland-Ross corporation, 523 F.2d 1367 (6th Cir.1975) (180-day filing requirement of ADEA is jurisdictional, but may be tolled). Accordingly, we will follow the line of decisions holding that the administrative filing requirements of the ADEA are not jurisdictional. Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978), appeal after remand, 630 F.2d 1217 (1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir.1976), aff'd by evenly divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977); Pirone v. Home Industries Co., 507 F.Supp. 1281 (S.D.N.Y.1981). The district court erred in requiring anything more than a general allegation that all conditions precedent had been fulfilled. A comparison of plaintiff’s allegations with those found sufficient in a number of Title VII cases reveals that plaintiff’s pleadings were more than adequate. In EEOC v. Klingler Electric Corp., 636 F.2d 104 (5th Cir.1981), the court found an allegation that stated no more than: “All conditions precedent to the institution of this lawsuit have been fulfilled” was sufficient. In EEOC v. Wah Chang Albany Corp., 499 F.2d 187 (9th Cir.1974), the court found no need to allege deferral to the state agency as a general allegation of the performance of conditions precedent was adequate. Similar results were reached in EEOC v. Times-Picayune Publishing Co., 500 F.2d 392 (5th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975); EEOC v. Standard Forge & Axle Co., 496 F.2d 1392 (5th Cir.1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975); Johnson v. Duval County Teachers Credit Union, 507 F.Supp." }, { "docid": "12426613", "title": "", "text": "71 L.Ed.2d 234 (1982), the Supreme Court held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court [under Title VII], but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Even before Zipes, this court had recognized that Title VII’s timing requirements are subject to equitable tolling. See, e.g., Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1297-1302 (5th Cir.1979); Bickham v. Miller, 584 F.2d 736, 738 (5th Cir.1978); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975); cf. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 591-92 (5th Cir.1981) (en banc) (reviewing Fifth Circuit precedent on equitable tolling of Title VIPs timing requirements). In Reeb, 516 F.2d at 931, the former Fifth Circuit held that Title VIPs period for filing a timely charge of discrimination with the EEOC “did not begin to run ... until the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff.” See also Allen v. U.S. Steel Corp., 665 F.2d 689, 692 (5th Cir.1982). In the present case, the district court based its finding of equitable tolling on its determination that “certain necessary information [about Buckeye’s P & P System] was not disseminated to technicians, which information, if known would have supported this Title VII cause of action....” Buckeye I, 733 F.Supp. at 357. After careful review of the record, we hold that the district court’s finding of equitable tolling was clearly erroneous. Cf. Bickham, 584 F.2d at 738 (reviewing district court finding regarding equitable tolling under clearly erroneous standard). In order for equitable tolling to be justified in this case, the facts must show that, in' the period more than 180 days prior to filing their complaints with the EEOC, appellants had no reason to believe that they were victims of unlawful discrimination. See Reeb, 516 F.2d at 930 (equitable tolling appropriate where, for six months," }, { "docid": "22127137", "title": "", "text": ".. shall have jurisdiction of actions under this subchapter.”). It is beyond dispute that statutes of limitations, conditions precedent, in personam jurisdiction, and other procedural requirements do not limit federal court jurisdiction under 28 U.S.C. § 1331. . In determining whether a condition precedent has been satisfied neither the Supreme Court nor the former Fifth Circuit have required that the conditions precedent to a Title VII action literally be met so long as the purposes of the preconditions have been satisfied. “Mindful of the remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme, courts construing Title VII have been extremely reluctant to allow procedural technicalities to bar claims under the Act.” Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). See Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972) (“Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.”). Both courts have on occasion modified the conditions precedent in light of equitable considerations. E.g., Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) (refusal to dismiss suit on the grounds that the plaintiff did not bring action within 90 days after receiving right-to-sue letter because defendant did not assert the tardy filing as a defense); Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (Title VII relief available to members of class action who never filed complaints with the EEOC); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981) (90 day limitation period for filing a Title VII action is not a jurisdictional prerequisite and is subject to equitable tolling); Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. 1981) (permitting relief to similarly situated, non-filing plaintiffs in a non-class action); Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979) (180 day limitation for filing an EEOC complaint not a jurisdictional prerequisite and is subject to equitable tolling); White v. Dallas" }, { "docid": "22127077", "title": "", "text": "within ten days after the charge is filed. After an evidentiary hearing, the district court concluded that the notice of the charge was mailed within the ten day period but that it was not received by the defendant until nine months after the charge was filed. Nevertheless, the former Fifth Circuit was “unwilling to hold that in the present situation — where there has been virtual compliance with all the statutory procedural steps, and where there has been no clear showing of substantial prejudice to Airguide — there has been a showing of a denial of due process sufficient to bar EEOC from bringing suit.” Id. at 1042. Accordingly, the court reversed and remanded the cause to the district court for a determination of the prejudice suffered by defendant Airguide because of the lack of timely notice of the charge. Again, the court in EEOC v. Airguide Corp., supra, could not have equitably modified the condition precedent if the failure to satisfy the precondition deprived the court of subject matter jurisdiction. Finally, a line of former Fifth Circuit cases explicitly treats the preconditions to filing a Title VII action as conditions precedent under Fed.R.Civ.P. 9(c). EEOC v. Klingler Electric Corp., 636 F.2d 104, 106 (5th Cir. 1981); EEOC v. The Times-Picayune Publishing Corp., 500 F.2d 392 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975); EEOC v. Standard Forge and Axle Co., 496 F.2d 1392 (5th Cir. 1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975). Rule 9(e) provides that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance shall be made specifically and with particularity.” Under this rule, if a party disagrees with a general averment that the conditions precedent have been met, that party may raise the issue with a specific and particular denial. If the party does not deny the satisfaction of the conditions precedent specifically and with particularity, however, the allegations are assumed admitted and cannot" }, { "docid": "22127065", "title": "", "text": "who not only failed to satisfy such conditions precedent as the timely filing of an EEOC complaint within 180 days of the alleged discrimination, timely filing of a Title VII action within 90 days after receiving a right to sue letter, or naming of a defendant as a respondent in the EEOC charge, but who did not file an EEOC complaint at all. Relying on the decisions of the courts of appeals and the legislative history of the Equal Employment Opportunity Act of 1972, the Court concluded that relief under Title VII “may be awarded on a class basis . . . without exhaustion of administrative procedures by the unnamed class members.” Id. at 414 n.8. See United Air Lines, Inc. v. McDonald, 432 U.S. 385, 389 n.6, 97 S.Ct. 2464, 2468, 53 L.Ed.2d 423 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 771, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976). The Court’s treatment of class members who failed to satisfy Title VII’s filing requirement stands in stark contrast to its treatment of class members who failed to fulfill the $10,000 jurisdictional amount requirement of 28 U.S.C. § 1331. In the latter instance, the Court has barred participation in a class action by potential class members not satisfying the $10,000 requirement. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). “If the timely filing of an administrative claim is truly a jurisdictional prerequisite, then each class member should be required to file a claim before participating in a Title VII class action, just as each class member must satisfy the jurisdictional amount in other class actions. The fact that they do not is an indication that the Court does not consider the filing requirement to be jurisdictional.” Coke v. General Adjustment Bureau, Inc., supra at 589. See Zipes v. Trans World Airlines, Inc., supra - U.S. at -, 102 S.Ct. at 1133; Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1298 (5th Cir. 1979). Prior to the Supreme" }, { "docid": "22868191", "title": "", "text": "had argued only that Evans should not be retroactively applied. In support of our view that the McArthur majority did not address the issue is the fact that the opinion did not cite Reeb v. Economic Opportunity Atlanta, Inc., supra, a case which would have had to have been overruled to permit a holding that the provision does involve subject matter jurisdiction, and also the fact that the en banc court in White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978)—decided only seven months after McArthur, but without even citing McArthur —approved equitable modification of a related Title VII provision. For the foregoing reasons, we do not believe that the McArthur majority addressed the issue, but any implication in McArthur that the time period does involve the court’s subject matter jurisdiction is rejected and overruled. . We are aware that several of our cases have used the jurisdictional label with reference to a different precondition to filing a Title VII suit, i. e., the requirement that suit be filed within 90 days after receipt of the right-to-sue letter from the EEOC, 42 U.S.C.A. § 2000e-5(f)(1) (1974). See Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir. 1978). See also Eastland v. TVA, 553 F.2d 364 (5th Cir.), cert. denied 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) (30-day period for filing suit by an aggrieved federal employee against his employer under 42 U.S.C.A. § 2000e-16(c) (1974) is a jurisdictional requirement). However, none of these cases addressed the issue of whether equitable tolling was permissible. In any event, subsequent decisions of this court indicate that the period for filing suit is more in the nature of a statute of limitations subject to equitable modification than a jurisdictional prerequisite. See Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1300-01 (5th Cir. 1979); Page v. U. S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), cert. denied 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Zambuto v. American Telephone And" }, { "docid": "17316643", "title": "", "text": "Georgia Dep’t Human Resources, Civil Action No. 81-2199A (N.D. Ga. Feb. 12, 1982); Stinson v. Georgia Dep’t Human Resources, Civil Action No. C80-1940A (N.D. Ga. July 7, 1981);. see also Osiecki v. Housing & Redevelopment Auth., 481 F.Supp. 1229 (D.Minn. 1979); Brisbane v. Port Authority of New York & New Jersey, supra. However, it is now settled law in this Circuit that this requirement, while statutory, is not jurisdictional and is subject to equitable waiver or tolling. In Jackson v. Seaboard Coast Line Railroad, 678 F.2d 992 (11th Cir. 1982), the Eleventh Circuit explained that “[although . . . courts have not had occasion to address the nature of each of Title VII’s preconditions, we discern no rational basis for treating those that have not been considered from those that implicitly or explicitly have been held not to be jurisdictional,” and went on to hold “that the conditions precedent to a Title VII action are not jurisdictional prerequisites, which if not satisfied deprive federal district courts of subject matter jurisdiction.” Id. at 1009, 1010. See also Zipes v. TWA, - U.S. -, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (filing of timely charge of discrimination with the EEOC is requirement in nature of statute of limitation — not jurisdictional); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981) (90-day limitation period for filing Title VII action not jurisdictional prerequisite and is subject to equitable tolling). The dispositive question, therefore, is whether in the instant case the circumstances require equitable waiver of the requirement of a notice of right to sue from the Attorney General. In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979), Judge Clark surveyed the cases that have permitted equitable suspension of Title VII time requirements and found suspension likely to occur in three situations: (1) during the pendency of an action involving the same parties and the same cause in state court, which has jurisdiction but is the wrong forum under state law; (2) when the defendant conceals facts that support the plaintiff’s cause of action; and (3) when the EEOC" }, { "docid": "22127073", "title": "", "text": "In so doing, the Court held by implication that Title VIPs 90 day filing requirement is not a jurisdictional prerequisite. See Zipes v. Trans World Airlines, Inc., supra-U.S. at-, 102 S.Ct. at 1133. The former Fifth Circuit also has concluded that Title VIPs filing periods are not jurisdictional. In Chappell v. Emco Machine Works Co., supra, the court addressed whether the 180 day limitation for filing an EEOC complaint, 42 U.S.C. § 2000e-5(e), is subject to equitable delay or interruption. See also Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). Confronted with prior decisions of the Fifth Circuit and the Supreme Court that loosely referred to the timely filing of an EEOC complaint as a “jurisdictional prerequisite,” the court acknowledged that “[i]t is illogical to designate a particular fact as necessary to the court’s jurisdiction, yet, in its absence, allow the court to adjudicate whether equities indicate that the jurisdictional defect should be ignored.” Id. at 1298. After carefully analyzing the relevant precedent, the court concluded that even though some holdings characterized the filing period as jurisdictional, they “do not preclude equitable modification of its requirements.” Id. at 1302. In Coke v. General Adjustment Bureau, Inc., supra, the former Fifth Circuit, en banc, reaffirmed its holding in Chappell and made clear that while the 180 day filing requirement under Title VII is a condition precedent to filing suit in district court, it is not related to the court’s subject matter jurisdiction. Id. at 587-95. See Allen v. United States Steel Corp., 665 F.2d 689, 695 n.2 (5th Cir. 1982). Similarly, in Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981), the court held that the 90 day limitation for filing a Title VII suit is not a jurisdictional prerequisite. “After the right-to-sue letter is issued, the timeliness of the suit in federal court does not involve the court’s jurisdiction but whether the litigant has fulfilled the statutory conditions.” Id. at 1070. See Whatley v. Department of Education, 673 F.2d 873, 879 n.5 (5th Cir. 1982). See also Page v. U. S. Industries, Inc., 556" }, { "docid": "22127078", "title": "", "text": "former Fifth Circuit cases explicitly treats the preconditions to filing a Title VII action as conditions precedent under Fed.R.Civ.P. 9(c). EEOC v. Klingler Electric Corp., 636 F.2d 104, 106 (5th Cir. 1981); EEOC v. The Times-Picayune Publishing Corp., 500 F.2d 392 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975); EEOC v. Standard Forge and Axle Co., 496 F.2d 1392 (5th Cir. 1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975). Rule 9(e) provides that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance shall be made specifically and with particularity.” Under this rule, if a party disagrees with a general averment that the conditions precedent have been met, that party may raise the issue with a specific and particular denial. If the party does not deny the satisfaction of the conditions precedent specifically and with particularity, however, the allegations are assumed admitted and cannot later be attacked. EEOC v. Klingler Electric Corp., supra at 107; EEOC v. Standard Forge and Axle Co., supra at 1395; Ginsburg v. Insurance Co. of North America, 427 F.2d 1318 (6th Cir. 1970). The court’s treatment of Title VII’s procedural requirements as conditions precedent under Rule 9(c) is wholly inconsistent with their being jurisdictional prerequisites because the satisfaction of a jurisdictional requirement cannot be waived and may be joined in issue by the parties or raised by the court at any time during the judicial proceedings. In conclusion, the decisions of both the Supreme Court and former Fifth Circuit reaffirm our interpretation of the language of Title VII and its legislative history. Both courts expressly have held that particular conditions precedent to a Title VII action are not jurisdictional prerequisites and have treated other preconditions in a manner inconsistent with their being jurisdictional. Although the courts have not had occasion to address the nature of each of Title VII’s preconditions, we discern no rational basis for treating those that have not been considered from" }, { "docid": "22127075", "title": "", "text": "F.2d 346, 350-51 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977). Thus, both the Supreme Court and former Fifth Circuit have concluded that Title VIPs time limitations are not jurisdictional prerequisites. The former Fifth Circuit has also treated other Title VII conditions precedent in a manner inconsistent with their being jurisdictional. In White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978) (en banc), the court considered whether the district court properly dismissed the appellant’s Title VII suit for want of subject matter jurisdiction because the plaintiff failed to pursue her claim of employment discrimination in an appropriate state agency before filing a charge with the EEOC as required by 42 U.S.C. § 2000e-5(c). Although the court found that the Texas statute in question was sufficient to trigger the requirements of 42 U.S.C. § 2000e-5(c), it nevertheless held that the district court erred in dismissing the suit because the EEOC substantially misled the plaintiff and “their mistakes should not redound to her detriment.” Id. at 562. As the court later noted in Coke v. General Adjustment Bureau, Inc., supra, “[a]lthough we expressly declined to decide whether the provision was a ‘jurisdictional prerequisite,’ we necessarily held that the equitable consideration of the misleading EEOC letters excused Mrs. White’s failure to file with the state agency.” Id. at 592. See Chappell v. Emco Machine Works Co., supra at 1300. The court could not have excused the plaintiff from filing a complaint with the appropriate state agency if the satisfaction of the precondition was necessary to the court’s jurisdiction. In EEOC v. Airguide Corp., 539 F.2d 1038 (5th Cir. 1976), the court again interpreted a specific precondition to filing a Title VII suit in light of equitable considerations. The issue there was whether the district court properly granted summary judgment for the defendants on the ground that the EEOC failed to comply with 42 U.S.C. § 2000e-5(b), which requires the Commission to serve notice of a charge to the alleged violator" }, { "docid": "23035286", "title": "", "text": "Moody, 422 U.S. 405, 414 n.8,95 S.Ct. 2362,2370 n.8, 45 L.Ed.2d 280 (1975); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969). This court in Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. 1981) extended the rationale of those decisions to nonfiling plaintiffs in a multiple-plaintiff, non-class action, holding that in an action involving claims of several persons arising out of a similar discriminatory treatment, not all of them need to have filed EEOC charges as long as one or more of the plaintiffs had satisfied the requirement. Id. at 665. If the exhaustion of the preconditions to a Title VII action, including the receipt of a right-to-sue letter, were jurisdictional, neither this court nor the Supreme Court could modify the requirements to permit non-filing plaintiffs to obtain relief under Title VII. See Zipes v. Trans World Airlines, Inc., supra, - U.S. at -, 102 S.Ct. at 1134. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 589 (5th Cir. 1981) (en banc). Only Congress can modify those requirements that it has deemed must be satisfied to permit lower federal courts to exercise jurisdiction over a cause of action. See Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339 (1943). Furthermore, both the Supreme Court and Fifth Circuit have found that the requirement that a plaintiff’s Title VII action may be filed within 90 days after receiving a right-to-sue letter is not a jurisdictional prerequisite. See Mohasco Corp. v. Silver, supra; Sessions v. Rusk State Hospital, supra. In Mohasco Corp. v. Silver, supra, the Supreme Court observed that the respondent had not satisfied the requirement that a party file suit within 90 days after receiving a right-to-sue letter. However, rather than dismissing the action sua sponte as it would have done were the requirement a jurisdictional prerequisite, the Court considered the case properly before it because “[pjetitioner did not assert respondent’s failure to file the action within 90 days as a defense.” Id. 447 U.S. at 811 n.9,100 S.Ct. at 2489 n.9. See Zipes v. Trans World Airlines, Inc., supra-U.S." }, { "docid": "22127138", "title": "", "text": "modified the conditions precedent in light of equitable considerations. E.g., Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) (refusal to dismiss suit on the grounds that the plaintiff did not bring action within 90 days after receiving right-to-sue letter because defendant did not assert the tardy filing as a defense); Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (Title VII relief available to members of class action who never filed complaints with the EEOC); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981) (90 day limitation period for filing a Title VII action is not a jurisdictional prerequisite and is subject to equitable tolling); Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. 1981) (permitting relief to similarly situated, non-filing plaintiffs in a non-class action); Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979) (180 day limitation for filing an EEOC complaint not a jurisdictional prerequisite and is subject to equitable tolling); White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978) (en banc) (action not dismissed although plaintiff failed to exhaust state administrative remedies as required under 42 U.S.C. § 2000e-5(c)); EEOC v. Airguide Corp., 539 F.2d 1038 (5th Cir. 1976) (action not dismissed although defendant had not received notice of the EEOC charge within 10 days of its filing as required by U.S.C. § 2000e-(5)(b)). Such relaxation of these requirements is wholly inconsistent with their being considered “jurisdictional prerequisites” since only Congress can modify the requirements that must be satisfied to enable a court to exercise dominion over a claim. See Chappell v. Emco Machine Works Co., supra at 1298; Miller v. International Paper Co., 408 F.2d 283, 285 (5th Cir. 1969). . Congress deleted the $10,000 amount in controversy requirement from 28 U.S.C. § 1331 in 1980. . Suit was first brought in 1970 by the Air Line Stewards and Stewardesses Association (ALSSA), the then collective bargaining agent of Trans World Airlines flight attendants, as a class action alleging that TWA practiced unlawful sex discrimination" }, { "docid": "22127066", "title": "", "text": "class members who failed to fulfill the $10,000 jurisdictional amount requirement of 28 U.S.C. § 1331. In the latter instance, the Court has barred participation in a class action by potential class members not satisfying the $10,000 requirement. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). “If the timely filing of an administrative claim is truly a jurisdictional prerequisite, then each class member should be required to file a claim before participating in a Title VII class action, just as each class member must satisfy the jurisdictional amount in other class actions. The fact that they do not is an indication that the Court does not consider the filing requirement to be jurisdictional.” Coke v. General Adjustment Bureau, Inc., supra at 589. See Zipes v. Trans World Airlines, Inc., supra - U.S. at -, 102 S.Ct. at 1133; Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1298 (5th Cir. 1979). Prior to the Supreme Court’s holding in Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the former Fifth Circuit in Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969) held that non-filing parties can be joined as members of a class in Title VII suits. In so deciding, it rejected the district court’s reasoning that since the filing of a charge with the EEOC is a jurisdictional prerequisite, an individual who has not filed charges with the Commission cannot entertain a civil action as a class member. The court explained that “[t]he fallacy of the district court’s reasoning is that the matter is primarily procedural rather than substantive and thus the question is one of simple expediency. In this posture, it is perfectly clear that no procedural purpose could be served by requiring scores of substantially identical grievances to be processed through the EEOC when a single charge would be sufficient to effectuate both the letter and the spirit of Title VII.” Id. at 285 (emphasis added). Extending this rationale" }, { "docid": "22127136", "title": "", "text": "801 (1975); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). More significantly, as discussed in the text, each time the court has actually considered whether or not a particular condition precedent is jurisdictional, the court has concluded that the precondition is not a jurisdictional prerequisite. E.g., Sessions v. Rusk State Hospital, supra (90 day limitation for filing a Title VII action is not a jurisdictional requirement); Coke v. General Adjustment Bureau, Inc., supra (180 day limitation for filing an EEOC complaint is not a jurisdictional requirement); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969) (filing of an EEOC complaint is a procedural rather than a substantive requirement). In addition, the former Fifth Circuit’s treatment of Title VII’s conditions precedent is inconsistent with characterizing them as jurisdictional. See text infra. . Compare, e.g., 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”) with 42 U.S.C. § 2000e-5(f)(3) (“Each United States district court . .. shall have jurisdiction of actions under this subchapter.”). It is beyond dispute that statutes of limitations, conditions precedent, in personam jurisdiction, and other procedural requirements do not limit federal court jurisdiction under 28 U.S.C. § 1331. . In determining whether a condition precedent has been satisfied neither the Supreme Court nor the former Fifth Circuit have required that the conditions precedent to a Title VII action literally be met so long as the purposes of the preconditions have been satisfied. “Mindful of the remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme, courts construing Title VII have been extremely reluctant to allow procedural technicalities to bar claims under the Act.” Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). See Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972) (“Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.”). Both courts have on occasion" }, { "docid": "22127135", "title": "", "text": "to the timely filing as jurisdictional, the legal character of the requirement was not at issue in those cases, and as more often in the same or other cases, we have referred to the provision as a limitations statute.” Moreover, the Supreme Court’s treatment of other conditions precedent is clearly inconsistent with the use of the label “jurisdictional prerequisites.” See text infra. Similarly, the former Fifth Circuit has in many cases characterized Title VII’s procedural requirements as “conditions precedent” rather than “jurisdictional prerequisites.” E.g., Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981); Coke v. General Adjustment Bureau, Inc., supra; EEOC v. Klingler Electric Corp., 636 F.2d 104, 106 (5th Cir. 1981); Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979); Page v. U. S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), cert, denied. 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); EEOC v. Standard Forge and Axle Company, Inc., 496 F.2d 1392 (5th Cir. 1974), cert, denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). More significantly, as discussed in the text, each time the court has actually considered whether or not a particular condition precedent is jurisdictional, the court has concluded that the precondition is not a jurisdictional prerequisite. E.g., Sessions v. Rusk State Hospital, supra (90 day limitation for filing a Title VII action is not a jurisdictional requirement); Coke v. General Adjustment Bureau, Inc., supra (180 day limitation for filing an EEOC complaint is not a jurisdictional requirement); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969) (filing of an EEOC complaint is a procedural rather than a substantive requirement). In addition, the former Fifth Circuit’s treatment of Title VII’s conditions precedent is inconsistent with characterizing them as jurisdictional. See text infra. . Compare, e.g., 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”) with 42 U.S.C. § 2000e-5(f)(3) (“Each United States district court ." }, { "docid": "22127074", "title": "", "text": "characterized the filing period as jurisdictional, they “do not preclude equitable modification of its requirements.” Id. at 1302. In Coke v. General Adjustment Bureau, Inc., supra, the former Fifth Circuit, en banc, reaffirmed its holding in Chappell and made clear that while the 180 day filing requirement under Title VII is a condition precedent to filing suit in district court, it is not related to the court’s subject matter jurisdiction. Id. at 587-95. See Allen v. United States Steel Corp., 665 F.2d 689, 695 n.2 (5th Cir. 1982). Similarly, in Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981), the court held that the 90 day limitation for filing a Title VII suit is not a jurisdictional prerequisite. “After the right-to-sue letter is issued, the timeliness of the suit in federal court does not involve the court’s jurisdiction but whether the litigant has fulfilled the statutory conditions.” Id. at 1070. See Whatley v. Department of Education, 673 F.2d 873, 879 n.5 (5th Cir. 1982). See also Page v. U. S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977). Thus, both the Supreme Court and former Fifth Circuit have concluded that Title VIPs time limitations are not jurisdictional prerequisites. The former Fifth Circuit has also treated other Title VII conditions precedent in a manner inconsistent with their being jurisdictional. In White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978) (en banc), the court considered whether the district court properly dismissed the appellant’s Title VII suit for want of subject matter jurisdiction because the plaintiff failed to pursue her claim of employment discrimination in an appropriate state agency before filing a charge with the EEOC as required by 42 U.S.C. § 2000e-5(c). Although the court found that the Texas statute in question was sufficient to trigger the requirements of 42 U.S.C. § 2000e-5(c), it nevertheless held that the district court erred in dismissing the suit because the EEOC substantially misled the" }, { "docid": "23035284", "title": "", "text": "^The application of the factors considered in Zipes v. Trans World Airlines, Inc. to the precondition involved in this case compels the conclusion that the receipt of a right-to-sue letter is not a jurisdictional prerequisite, but rather is a condition precedent subject to equitable modification. First, we note that 42 U.S.C. § 2000e-5(f)(3), the relevant jurisdictional provision, does not limit jurisdiction to those cases in which a plain tiff has received a right-to-sue letter. Nor does section 2000e-5(f)(l), which requires that plaintiffs receive statutory notice of the right to sue before bringing a Title VII action, speak in jurisdictional terms. Moreover, nothing in the legislative history indicates that Congress intended the receipt of a right-to-sue letter to constitute a jurisdictional prerequisite. Thus, we are not inclined to deviate from the plain meaning of the statute. See, e.g., Alabama v. Marshall, 626 F.2d 366, 368-69 (5th Cir. 1980). 1980) . The decisions of the Supreme Court and Fifth Circuit are also inconsistent with holding the receipt of a right-to-sue letter to be a jurisdictional prerequisite. Rather the decisions clearly indicate that the requirement is a condition precedent subject to equitable modification. See, e.g., Zipes v. Trans World Airlines, Inc., - U.S. -, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980); Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (en banc); Clanton v. Orleans Parish School Board, 649 F.2d 1084 (5th Cir. 1981). For example, both the Supreme Court and Fifth Circuit have held that relief under Title VII may be awarded members of a class who neither filed an EEOC complaint nor received a right-to-sue letter. See United Air Lines, Inc. v. McDonald, 432 U.S. 385, 389 n.6, 97 S.Ct. 2464, 2467 n.6, 53 L.Ed.2d 423 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 771, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976); Albermarle Paper Co. v." }, { "docid": "22868192", "title": "", "text": "after receipt of the right-to-sue letter from the EEOC, 42 U.S.C.A. § 2000e-5(f)(1) (1974). See Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir. 1978). See also Eastland v. TVA, 553 F.2d 364 (5th Cir.), cert. denied 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) (30-day period for filing suit by an aggrieved federal employee against his employer under 42 U.S.C.A. § 2000e-16(c) (1974) is a jurisdictional requirement). However, none of these cases addressed the issue of whether equitable tolling was permissible. In any event, subsequent decisions of this court indicate that the period for filing suit is more in the nature of a statute of limitations subject to equitable modification than a jurisdictional prerequisite. See Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1300-01 (5th Cir. 1979); Page v. U. S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), cert. denied 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Zambuto v. American Telephone And Telegraph Co., 544 F.2d 1333 (5th Cir. 1977). The Supreme Court has impliedly resolved this question in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In that case, the Court noted that the Title VII complaint had not been filed in the district court within the 90-day period, but did not sua sponte dismiss the action as it would have had the Court considered it to be a question of subject matter jurisdiction. The Court simply noted that “[pjetitioner did not assert respondent’s failure to file the action within 90 days as a defense,” id. at 811, n.9, 100 at 2489 n.9, 65 L.Ed.2d at 539 n.9, implying that petitioner had waived that defense. A statute of limitations defense may be waived, but the subject matter jurisdiction of the court cannot be waived or conferred upon the court by consent of the parties. . Title VII jurisdictional provisions is found at 42 U.S.C.A. § 2000e-5(e) and (f) (1974). The ADEA jurisdictional provision is found at 29 U.S.C. § 626(c)" }, { "docid": "23035285", "title": "", "text": "the decisions clearly indicate that the requirement is a condition precedent subject to equitable modification. See, e.g., Zipes v. Trans World Airlines, Inc., - U.S. -, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980); Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (en banc); Clanton v. Orleans Parish School Board, 649 F.2d 1084 (5th Cir. 1981). For example, both the Supreme Court and Fifth Circuit have held that relief under Title VII may be awarded members of a class who neither filed an EEOC complaint nor received a right-to-sue letter. See United Air Lines, Inc. v. McDonald, 432 U.S. 385, 389 n.6, 97 S.Ct. 2464, 2467 n.6, 53 L.Ed.2d 423 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 771, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8,95 S.Ct. 2362,2370 n.8, 45 L.Ed.2d 280 (1975); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969). This court in Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. 1981) extended the rationale of those decisions to nonfiling plaintiffs in a multiple-plaintiff, non-class action, holding that in an action involving claims of several persons arising out of a similar discriminatory treatment, not all of them need to have filed EEOC charges as long as one or more of the plaintiffs had satisfied the requirement. Id. at 665. If the exhaustion of the preconditions to a Title VII action, including the receipt of a right-to-sue letter, were jurisdictional, neither this court nor the Supreme Court could modify the requirements to permit non-filing plaintiffs to obtain relief under Title VII. See Zipes v. Trans World Airlines, Inc., supra, - U.S. at -, 102 S.Ct. at 1134. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 589 (5th Cir. 1981) (en banc). Only Congress can modify those requirements that" }, { "docid": "22127134", "title": "", "text": "798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); McArthur v. Southern Airways, Inc., 569 F.2d 276, 277 (5th Cir. 1978) (en banc); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136, 1139 (5th Cir. 1971). However, the trend of the Supreme Court has been away from using that label. E.g., Zipes v. Trans World Airlines, Inc., supra-U.S. at-& n.12, 102 S.Ct. at 1133 & n.12; Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Mohasco Corp. v. Silver, 447 U.S. 807, 818-23, 100 S.Ct. 2486, 2492-95, 65 L.Ed.2d 532 (1980); International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). See Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 588-89 (5th Cir. 1981) (en banc). In Zipes v. Trans World Airlines, Inc., supra - U.S. at --, 102 S.Ct. at 1132, the Supreme Court observed that “[ajlthough our cases contain scattered references to the timely filing as jurisdictional, the legal character of the requirement was not at issue in those cases, and as more often in the same or other cases, we have referred to the provision as a limitations statute.” Moreover, the Supreme Court’s treatment of other conditions precedent is clearly inconsistent with the use of the label “jurisdictional prerequisites.” See text infra. Similarly, the former Fifth Circuit has in many cases characterized Title VII’s procedural requirements as “conditions precedent” rather than “jurisdictional prerequisites.” E.g., Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981); Coke v. General Adjustment Bureau, Inc., supra; EEOC v. Klingler Electric Corp., 636 F.2d 104, 106 (5th Cir. 1981); Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979); Page v. U. S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), cert, denied. 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); EEOC v. Standard Forge and Axle Company, Inc., 496 F.2d 1392 (5th Cir. 1974), cert, denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d" } ]

[ { "docid": "22318603", "title": "", "text": "(2) termination of tenancy for violation of HA rules and regulations; and (3) assessment of “additional rent” charges under the HA lease for undesirable acts by tenants. The HA, a corporate governmental agency financed by federal, state and city funds, administers the largest public housing program in the country, housing more than 144,000 families. I. Since the complaints were dismissed at the pleadings stage on motions to dismiss, we must accept the allegations in appellants’ complaints and supporting affidavits as true. Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). An action, especially under the Civil Rights Act, should not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of the facts, which could be proved in support of their claims. Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Barnes v. Merritt, 376 F.2d 8 (5 Cir. 1967); York v. Story, 324 F.2d 450, 453 (9 Cir. 1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); 2A Moore, Federal Practice jj 12.08, at 2271-74 (1968). Considered in this light, the challenge to the procedures of the HA is as follows. A. Termination for Non-desirability. Tenants in HA projects are required to sign month-to-month automatically renewable leases which can be terminated at the end of any month by either party upon the giving of one month’s notice. Leases are terminated by the giving of one month’s notice if the tenant is found to be non-desirable. If a tenant’s undesirable acts persist to the point where the project manager decides he should recommend the termination of the tenancy on the ground of non-desirability, the manager has a meeting with the tenant at which he informs the tenant of his proposed recommendation, reviews with the tenant the information in the tenant’s folder (which contains the entire history of the tenancy), and discusses the undesirable activity in question. The tenant is given a chance to explain his activity. If after the meeting the project" } ]

[ { "docid": "13623070", "title": "", "text": "there will be common issues of law and fact, this Court finds that proper joinder exists. See 7 C. Wright, Federal Practice & Procedure (Civil) § 1683 (1972). Therefore, in the interests of judicial economy, Fed.R.Civ.P. 1, the case against all the defendants shall be tried in one action. Accordingly, it is ordered: 1. That defendant Public Service Board’s motion to dismiss is granted; 2. That the plaintiff’s motion to amend his complaint to allege a Fourteenth Amendment claim against the Public Service Board is denied without prejudice; 3. That the plaintiff’s § 1985(2) claim against defendants VEC, Gilbert and Ruggles is dismissed; 4. That the plaintiff’s § 1983 claim insofar as it seeks money damages against the defendants Gilbert and Ruggles is dismissed; 5. That the motions to dismiss of defendants Gilbert and Ruggles, insofar as they relate to the plaintiff’s request for declaratory relief under § 1983, are denied; 6. That defendant Cheney’s motion to dismiss is granted; 7. That the plaintiff’s motion to amend his complaint to assert a pendent, Vermont common law claim against the defendant VEC is granted; 8. That the defendant VEC’s motion for judgment on the pleadings is denied; 9. That the defendant Ravenna’s motion for severance is denied; and 10. That this case shall be set for a hearing on the plaintiff’s request for a preliminary injunction, and all counsel are to provide the Court with memoranda supporting their respective positions if they have not already done so. . Defendants Gilbert and Ruggles are being sued individually and in their capacity as commissioners of the Vermont PSB. Defendant Gilbert is also being sued in his capacity as chairman of the PSB. Defendant Cheney is being sued individually and in his capacity as the Attorney General for the State of Vermont. . At tlie hearing on PSB’s motion to dismiss, the plaintiff requested permission to amend liis complaint against PSB to allege a direct action based on the Fourteenth Amendment, with jurisdiction founded on 28 U.S.C. § 1331 (1970), due to the recent decision of Brault v. Town of Milton, No. 74-2370 (2d" }, { "docid": "22002140", "title": "", "text": "-, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977) (N.Y.C. Board of Education not a “person”); Blanton v. State University of New York, 489 F.2d 377, 382 (2d Cir. 1973) (State University not a “person”); Williford v. People of California, 352 F.2d 474, 476 (9th Cir. 1965) (state not a “person”); Edwards v. New York, 314 F.Supp. 469, 471 (S.D.N.Y.1970) (same); Sams v. New York State Board of Parole, 352 F.Supp. 296, 298-99 (S.D.N.Y.1972) (N.Y.C. Transit Authority), and cases cited therein. But see Forman v. Community Services, Inc., 500 F.2d 1246, 1255 (2d Cir. 1974), rev’d on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). Plaintiff’s claims against the institutional defendants, being premised directly upon deprivations of constitutional rights, do provide a basis for invoking federal question jurisdiction under 28 U.S.C. §1331: “Section 1331(a) vests District Courts with original jurisdiction of civil actions arising under the Constitution and laws of the United States. Apart from the fourteenth amendment, the only ‘law’ of the United States upon which the plaintiff relies is 42 U.S.C. § 1983, which will not support a claim against the municipal defendant. The complaint, however, alleges a deprivation by the defendant City [and other institutional defendants] of rights secured by [the Contracts Clause and] the Due Process Clause and seeks damages far in excess of $10,000. Thus, to the extent that relief is sought under the fourteenth amendment [and Contracts Clause], the plaintiff’s claim ‘arises under the Constitution * * * of the United States,’ and jurisdiction over the subject matter exists under 28 U.S.C. § 1331(a).” Perzanowski v. Salvio, 369 F.Supp. 223, 229 (D.Conn.1974). See Bell v. Hood, 327 U.S. 678, 681-84, 66 S.Ct. 773, 90 L.Ed. 939 (1946); City of Kenosha v. Bruno, supra, 412 U.S. at 514, 93 S.Ct. 2222 (remand instructions); Brault v. Town of Milton, 527 F.2d 730, 736 n. 1 (2d Cir. 1971) (en banc). Thus this Court does have jurisdiction to consider plaintiff’s claims for injunctive and declaratory relief against the institutional defendants* if the amount in controversy requirement" }, { "docid": "22002139", "title": "", "text": "employees. This clearly is not a statute of state-wide application within the contemplation of 28 U.S.C. § 2281. IY. Plaintiff’s claims against defendant City of New York under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), clearly cannot be maintained because a municipality is not a “person” within the meaning of Section 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (equitable and declaratory relief); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (damages). The same is true of the Retirement Board, see Surowitz v. New York City Employees’ Retirement System, 376 F.Supp. 369 (S.D.N.Y.1974), and cases cited therein. It also appears that MAC and the Emergency Control Board, as instrumentalities of the state with financial responsibilities toward the City of New York, probably are likewise not “persons” within the meaning of Section 1983. See, e. g., Monell v. Dept. of Soc. Serv. of City of New York, 532 F.2d 259, 262-63 (2d Cir. 1976), cert. filed, - U.S. -, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977) (N.Y.C. Board of Education not a “person”); Blanton v. State University of New York, 489 F.2d 377, 382 (2d Cir. 1973) (State University not a “person”); Williford v. People of California, 352 F.2d 474, 476 (9th Cir. 1965) (state not a “person”); Edwards v. New York, 314 F.Supp. 469, 471 (S.D.N.Y.1970) (same); Sams v. New York State Board of Parole, 352 F.Supp. 296, 298-99 (S.D.N.Y.1972) (N.Y.C. Transit Authority), and cases cited therein. But see Forman v. Community Services, Inc., 500 F.2d 1246, 1255 (2d Cir. 1974), rev’d on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). Plaintiff’s claims against the institutional defendants, being premised directly upon deprivations of constitutional rights, do provide a basis for invoking federal question jurisdiction under 28 U.S.C. §1331: “Section 1331(a) vests District Courts with original jurisdiction of civil actions arising under the Constitution and laws of the United States. Apart from the fourteenth amendment, the only ‘law’ of the United" }, { "docid": "13623057", "title": "", "text": "Jr., Inc. v. State University Construction Fund, 493 F.2d 177, 179-180 (1st Cir. 1974). This inquiry would give rise to Eleventh Amendment considerations and questions of sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). However, we need not reach these questions here for the reason that the PSB is not a “person” within the meaning of the Civil Rights Statutes. Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir. 1969), rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Sykes v. California, 497 F.2d 197, 201 (9th Cir. 1974); Surowitz v. New York City Employees’ Retirement System, 376 F.Supp. 369, 371 (S.D.N.Y.1974). Since the plaintiff’s complaint fails to state a claim upon which relief can be granted against the PSB, its motion to dismiss must be granted. B. Defendants Gilbert and Ruggles The plaintiff claims that these defendants, while members of the PSB, engaged in a conspiracy that violated his due process and equal protection rights in denying him a hearing prior to the termination of his electric service. The plaintiff requests declaratory relief and money damages against the defendants in both their official and individual capacities under 42 U.S.C. §§ 1983 and 1985(2) (1970). A claim for damages asserted against a state officer in his official capacity, is, in effect, an action against the State, which is barred by the Eleventh Amendment. Edelman, supra at 662-663, 94 S.Ct. 1347. A state may waive its sovereign immunity; Vermont has waived state immunity within the limits of the insurance coverage of its employees. However, this statutory waiver does not extend to suits in federal court. Miller v. Vermont, 201 F.Supp. 930 (D.Vt. 1962); Lewis v. Vermont, 289 F.Supp. 246 (D.Vt.1968). Therefore, the complaint fails to state a cause of action upon which relief in the form of money damages can be granted against defendants Gilbert and Ruggles in their official capacities as commissioners of the PSB. Actions for declaratory relief against a state officer in his official capacity are not to be construed as suits against the state" }, { "docid": "13623072", "title": "", "text": "Cir. Feb. 24, 1975). Permission to so amend the complaint is denied until such time as the Brault decision is rendered, following the rehearing; en banc by the Second Circuit. Should that decision be favorable to the plaintiff’s position, his request to amend his complaint may be raised anew at that time. . The plaintiff conceded this point at the hearing; however, he subsequently revoked that concession, citing Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974). Although that opinion stated by way of dictum that agencies are “persons” under the Civil Bights Act, the cited authority for that statement was Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1971), and Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968). Neither of those two oases squarely faced the issue of whether the defendant was a “person” under the Civil Bights Act; and, furthermore, the court in Holmes stated clearly that the N.Y.C. Housing Authority was a public corporation. Holmes, supra at 263. For these reasons, this Court declines to follow Forman and relies instead on the cases cited. . Defendant Gilbert is being sued in two official capacities; as commissioner of the PSB and as chairman of the PSB. As is evident from subsequent discussion herein, this twofold official capacity is of no consequence to the present motions. . 29 Y.S.A. §§ 1401 & 1403 (1972). . Accord, Klein v. New Castle County, 370 F.Supp. 85 (D.Del.1974) (declaratory relief against county officials granted). . Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969); Griffin v. Beckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). . Accord, Hahn v. Sargent, 388 F.Supp. 445, 449 (D.Mass.1975); Phillips v. Singletary, 350 F.Supp. 297, 301-303 (D.S.C.1972); McIntosh v. Garofalo, 367 F.Supp. 501, 505-506 (W.D.Pa.1973). . See McTighe v. New England Telephone & Telegraph Co., 216 F.2d 26, 29 (2d Cir. 1954); Trybulski v. Bellows Palls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117 (1941). . This alleged act of" }, { "docid": "13623071", "title": "", "text": "law claim against the defendant VEC is granted; 8. That the defendant VEC’s motion for judgment on the pleadings is denied; 9. That the defendant Ravenna’s motion for severance is denied; and 10. That this case shall be set for a hearing on the plaintiff’s request for a preliminary injunction, and all counsel are to provide the Court with memoranda supporting their respective positions if they have not already done so. . Defendants Gilbert and Ruggles are being sued individually and in their capacity as commissioners of the Vermont PSB. Defendant Gilbert is also being sued in his capacity as chairman of the PSB. Defendant Cheney is being sued individually and in his capacity as the Attorney General for the State of Vermont. . At tlie hearing on PSB’s motion to dismiss, the plaintiff requested permission to amend liis complaint against PSB to allege a direct action based on the Fourteenth Amendment, with jurisdiction founded on 28 U.S.C. § 1331 (1970), due to the recent decision of Brault v. Town of Milton, No. 74-2370 (2d Cir. Feb. 24, 1975). Permission to so amend the complaint is denied until such time as the Brault decision is rendered, following the rehearing; en banc by the Second Circuit. Should that decision be favorable to the plaintiff’s position, his request to amend his complaint may be raised anew at that time. . The plaintiff conceded this point at the hearing; however, he subsequently revoked that concession, citing Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974). Although that opinion stated by way of dictum that agencies are “persons” under the Civil Bights Act, the cited authority for that statement was Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1971), and Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968). Neither of those two oases squarely faced the issue of whether the defendant was a “person” under the Civil Bights Act; and, furthermore, the court in Holmes stated clearly that the N.Y.C. Housing" }, { "docid": "18637509", "title": "", "text": "securities are exempt from all substantive requirements. S.Rep.No.94-75 at 44, U.S.Code Cong. & Admin.News 1975, p. 221. See also id. at Contrary to the plaintiffs’ contention, the Second Circuit in Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974), rev’d on other grounds sub nom. United Housing Foundation v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975) did not have before it the question presented here. In Forman, the plaintiffs, purchasers of shares in a New York State financed cooperative apartment, brought suit against several corporate defendants under § 10(b) of the 1934 Act and § 17(a) of the 1933 Act. Significantly, the plaintiffs also sought to recover damages from the New York State Housing Finance Agency and the State of New York alleging violations of 42 U.S.C. § 1983 arising out of the same conduct which gave rise to the § 10(b) claims asserted against the other defendants. Thus, the Forman court had no occasion to consider whether § 10(b) applied directly to governmental issuers. While Forman did not have the question before it, courts that have considered whether § 10(b) extends to municipalities agree that it does not. Decisions in the Second Circuit and in this district have acknowledged the fact that the definition of “person” in § 3(a)(9) of the 1934 Act did not include municipalities. In Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), rev’d on other grounds, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) the court, in a footnote, observed: [T]he definition of “person” in § 3(a)(9) of the Securities Exchange Act of 1934 did not include governmental agencies until the 1975 amendments of § 3(aX9) . 532 F.2d at 263 n.3. Two recent district courts expressed the same view. In Greenspan v. Crosbie [1976-1977 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 95,780 (S.D.N.Y.1976), the court dismissed a lawsuit brought under § 10(b) by the sellers and purchasers of the stock of a Canadian company against the Province of Newfoundland and Labrador, and the three highest officials of that" }, { "docid": "6415980", "title": "", "text": "Board of Education, 407 F.Supp. 1166, 1168-69 (E.D.N.Y.1976). The Court of Appeals for this circuit has also observed in a section 1983 ease that “agencies” of municipal corporations are persons within the meaning of that section. Forman v. Community Services, Inc., 500 F.2d 1246, 1255 (2d Cir. 1974), rev’d on other grounds, sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). Thus, even if this suit were deemed to be one against an agency of a municipality recovery of damages would not be precluded. Reliance upon Egelston v. State University of New York at Geneseo, No. 75-9 (W.D.N.Y.1975), rev’d, 535 F.2d 752 (2d Cir. 1976), and Taliaferro v. State Council of Higher Education, 372 F.Supp. 1378 (E.D.Va.1974), is similarly misplaced. There, the defendants were agencies of the state and their officials. The instant action, however, has not been brought against either the state or an agency or official of the state. Harkless v. Sweeny Independent School District, 388 F.Supp. 738 (S.D.Tex.1975), cited by the defendants, is also inapposite. In a prior decision in Harkless by the Court of Appeals for the Fifth Circuit, the court observed that a Texas school district “is of the nature of a municipality.” Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971). This was the basis for the district court’s subsequent decision that the school district was not a person against whom an action under section 1983 could be maintained. Here, of course, the defendants are not municipalities. Even if the City University is deemed to be the real party in interest, it is at best an agency of a municipality which is subject to suit under section 1983. Forman v. Community Services, Inc., supra. Moreover, the complaint in this action also alleges jurisdiction pursuant to 28 U.S.C. § 1331 to hear a cause of action under the due process and equal protection clauses of the Fourteenth Amendment. The plaintiff earned an annual salary to $17,550 at the time of her" }, { "docid": "6415979", "title": "", "text": "Cir. 1972). Political subdivisions of states are also excluded from coverage. Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). However, it is by no means clear that damages may not be recovered from the defendants here in their official capacities merely because the City University performs a governmental function. The defendants rely on City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), for the proposition that an award of damages against the defendants as officials would be improper. Since that decision, however, the Supreme Court has reinstated an order granting back pay in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) rev’g 474 F.2d 395 (4th Cir. 1973), rev’g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (E.D.Va.1971). In this district, back pay has been awarded after Kenosha for the dismissal of a New York City employee without due process. Vega v. Civil Service Commission, 385 F.Supp. 1376 (S.D.N.Y. 1974). See generally Lombard v. Board of Education, 407 F.Supp. 1166, 1168-69 (E.D.N.Y.1976). The Court of Appeals for this circuit has also observed in a section 1983 ease that “agencies” of municipal corporations are persons within the meaning of that section. Forman v. Community Services, Inc., 500 F.2d 1246, 1255 (2d Cir. 1974), rev’d on other grounds, sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). Thus, even if this suit were deemed to be one against an agency of a municipality recovery of damages would not be precluded. Reliance upon Egelston v. State University of New York at Geneseo, No. 75-9 (W.D.N.Y.1975), rev’d, 535 F.2d 752 (2d Cir. 1976), and Taliaferro v. State Council of Higher Education, 372 F.Supp. 1378 (E.D.Va.1974), is similarly misplaced. There, the defendants were agencies of the state and their officials. The instant action, however, has not been brought against either the state or an agency or official of the state. Harkless v. Sweeny Independent School District, 388 F.Supp. 738 (S.D.Tex.1975), cited by the defendants, is" }, { "docid": "14627344", "title": "", "text": "stay Chenango Court from pursuing a state eviction proceeding under § 711 of the New York Real Property Actions and Proceedings Law, McKinney’s Consol.Laws, c. 81. Defendant countered with a motion to dismiss. The court granted the defendant’s motion on two grounds. These were that plaintiff had not asserted a deprivation of constitutional rights “under color of any statute, ordinance, regulation, custom, or usage of any State or Territory,” within 42 U.S.C. § 1983, and that she was complaining only of the deprivation of property rights and was therefore not within the protection of the Civil Rights Act. For the latter proposition the judge cited our recent decisions in Eisen v. Eastman, 421 F.2d 560 (1969) and Davenport v. Berman, 420 F.2d 294 (1969). We are not persuaded with respect to the second ground. A tenant’s interest in not being evicted is a good deal more “personal” than a landlord’s interest in resisting rent controls, the situation to which the two cited decisions were addressed. Indeed, we decided that such an interest is within the protection of the Civil Rights Act implicitly in Holmes v. New York City Housing Authority, 398 F.2d 262 (2 Cir. 1968), and explicitly in Escalera v. New York City Housing Authority, 425 F.2d 853, 864-865 (1970). But the district court was correct in holding that the complaint failed to allege state action as the Civil Rights Act requires. Receipt of federal benefits in the form of mortgage insurance under the National Housing Act does not make the defendant an agency of the State of New York so as to require it to accord the procedural due process which the Fourteenth Amendment demands of a state. Neither, despite some language in Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), can state action be found in New York providing defendant with the same right to secure the eviction of a tenant by a proceeding in its courts that it gives to all landlords; the one thing now almost universally agreed is that such a rationale for that landmark decision would be" }, { "docid": "676022", "title": "", "text": "(1971), the court should abstain from enjoining the enforcement of, or declaring unconstitutional, a state criminal statute while state criminal prosecutions under the statute are pending against members of plaintiffs’ sect. I The first ground advanced by the Port Authority for dismissal is failure to state a cause of action under 42 U.S.C. § 1983. It contends that the Port Authority, as an instrumentality of New York and New Jersey, is not a person within the meaning of § 1983, and therefore, dismissal is required. Apparently to circumvent this argument, plaintiff joined the Superintendent of the Port Authority Police Force, Walter Lee, as a defendant. Although the Port Authority had an opportunity to address the issue again following the filing of plaintiffs’ second amended complaint, it ignored the inclusion of Lee as a defendant and reasserted its position that dismissal was required because the Port Authority is not a “person” within the meaning of § 1983. The Second Circuit has held that while municipalities are not deemed “persons” under the Civil Rights Act, “agencies” are, Forman v. Community Services, Inc., 500 F.2d 1246, 1255 (2d Cir. 1974), rev'd on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 846 n.11, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). Thus, the State Housing Finance Agency was deemed to be a “person” within the meaning of § 1983. More recently however, the Second Circuit has announced that it doubted the Forman opinion intended to “imply that all ‘agencies’ are persons under § 1983......\" Monell v. Department of Soc. Serv. of the City of New York, 532 F.2d 259, 263 (2d Cir. 1976). In Melani v. Board of Higher Educ. of the City of New York, 12 EPD ¶ 11,068, p. 4957 (S.D.N.Y.1976), Judge Gagliardi wrote: “It is well-established that states, municipalities, and other political subdivisions are not ‘persons’ within the meaning of this section for purposes of assessing money damages, Monroe v. Pape, 365 U.S. 167 [, 81 S.Ct. 473, 5 L.Ed.2d 492] (1961), or granting equitable relief, City of Kenosha v. Bruno, 412 U.S. 507 [, 93 S.Ct." }, { "docid": "22014554", "title": "", "text": "‘persons’ within the meaning of the Civil Rights Act” 384 F.Supp. at 809. Both Bruno & Monroe, however, were § 1983 cases; and the Court of Appeals has held that state agencies are persons within the meaning of § 1983. Forman v. Community Services, Inc., 500 F.2d at 1255. . 42 U.S.C. § 1982 provides: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. . 28 U.S.C. § 1331 provides in part: (a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . This issue was the subject of Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975) in which the Court of Appeals recognized a federal cause of action for damages against a municipality predicated directly on the Fourteenth Amendment. However, this decision was subsequently granted an en banc rehearing, wherein the Court of Appeals dismissed the complaint for failure to state a claim, and found it unnecessary to resolve this constitutional issue. Brault v. Town of Milton, 527 F.2d 737 (2d Cir. 1975)." }, { "docid": "23298676", "title": "", "text": "since 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), recognized a direct constitutional cause of action under the Fourth Amendment, and City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), implied that similar causes of action would be recognized under the Fourteenth Amendment (by remanding for consideration of whether the jurisdictional amount had been met). Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir. 1975); Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 718-19 n.7 (7th Cir. 1975) (Stevens, J.), cert. denied, 425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d 768 (1976); Gray v. Union County Intermediate Education District, 520 F.2d 803, 805 (9th Cir. 1975); Hanna v. Drobnick, 514 F.2d 393, 398 (6th Cir. 1975); Roane v. Callisburg Independent School District, 511 F.2d 633, 635 & n.1 (5th Cir. 1975). See also Popkin v. New York State Health & Mental Hygiene Facilities Improvement Corp., 547 F.2d 18, 20 n.5 (2d Cir. 1976); Hupart v. Board of Higher Education, 420 F.Supp. 1087, 1103 (S.D.N.Y.1976) (Frankel, J.); Sixth Camden Corp. v. Township of Evesham, 420 F.Supp. 709, 715-17 (D.N.J.1976); Panzarella v. Boyle, 406 F.Supp. 787, 791-93 (D.R.I.1975); R. Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw.U.L.Rev. 770 (1975); Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976). But see Farnsworth v. Orem City, 421 F.Supp. 830, 831 (D.Utah 1976). To the best of our knowledge, no circuit has stated a contrary rule since Bivens. Persuaded by the authorities cited above and by the analogous authorities of our court, see Matherson v. Long Island State Park Commission, supra, 442 F.2d at 568 (Moore, J.); Eisen v. Eastman, 421 F.2d 560, 566-67 (2d Cir. 1969) (Friendly, J.),. cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), and following the reasoning of the panel majority opinion in Brault v. Town of Milton, supra, 527 F.2d at 733-35, we hold that appellant states a valid cause of action against the school board members in their official capacities" }, { "docid": "20565589", "title": "", "text": "defendants’ arguments that it is powerless to hear these tenants’ claims because they are claims based on property rights. Indeed, there is little comfort to me in any judicially fashioned doctrine that excludes from this Court persons asserting important constitutional rights. However, I do not find it necessary to reach defendants’ argument that this Court should accept the Eisen doctrine since, even applying Eisen, this Court properly has jurisdiction under 28 U.S.C. § 1343 (3). Citation of prior case law would suffice to establish that these plaintiffs raise a claim within the civil rights jurisdiction. See McQueen v. Druker, D.C., 317 F.Supp. 1122, aff’d in part 438 F.2d 781 (1st Cir. 1971). Also, Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir. 1970), cert. denied 401 U.S. 1003, 91 S.Ct. 1228, 28 L.Ed.2d 539 (1971); McMichael v. Chester Housing Authority, 325 F.Supp. 147 (E.D.Pa. 1971). Rejecting the contention that a tenant who claims a right to “a full, fair and impartial hearing” before eviction merely asserts a property right not within the protection of the Civil Rights Act, a panel in the Second Circuit, including Judge Friendly, who authored Eisen, found: “A tenant’s interest in not being evicted is a good deal more ‘personal’ than a landlord's interest in resisting rent controls, the situation to which [Eisen and Davenport v. Berman, 2 Cir., 420 F.2d 294] were addressed. Indeed, we decided that such an interest is within the protection of the Civil Rights Act implicitly in Holmes v. New York City Housing Authority, 398 F.2d 262 (2 Cir. 1968), and explicitly in Escalera v. New York City Housing Authority, 425 F.2d 853, 864-865 ([2 Cir.] 1970).” McGuane v. Chenango Court, Inc., 431 F.2d 1189 (2d Cir. 1970), cert. denied 401 U.S. 994, 91 S.Ct. 1238, 28 L.Ed.2d 532 (1971). Plaintiff in McGume was a tenant in an apartment building constructed with the assistance of federal mortgage insurance under 12 U.S.C. § 17151(d), as are plaintiffs here. Where there are overtones of a deprivation of a substantial personal right mixed with a deprivation of property rights, this Court will take" }, { "docid": "22586910", "title": "", "text": "claim founded directly upon the Fourteenth Amendment and 28 U.S.C. § 1331(a) as an alternative basis for relief. He suggests that support for this claim is furnished by the recent decision by a panel of this Court in Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975). The majority there decided that “the plaintiffs’ complaint states a cause of action stemming from the Due Process Clause of the Fourteenth Amendment . . .”, id. at 734 and rejected the view “that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights.” Id. at 735. The panel’s decision in Brault was filed on February 24, 1975, some three months after Judge Brieant dismissed Fine’s complaint against the City of New York. Upon reargument, however, the district judge concluded that the Brault decision was not in point. While the Town of Milton had acted directly as a municipal corporation, Fine, in the judge’s view, was attempting to visit liability upon the City vicariously for the allegedly tortious activities of its employees. Subsequently we granted an application by the Town of Milton for a rehearing of the appeal en banc. Upon further examination of the recoid, the en banc court found it unnecessary to resolve the Fourteenth Amendment and several other issues raised by the parties. Brault v. Town of Milton, 527 F.2d 736 (2d Cir. 1975) (en banc). The en banc majority, therefore, did not reach the underlying questions of substantive liability and municipal immunity under the Fourteenth Amendment. See id. at 741 (dissenting opinion). We, too, are of the view that we need not decide these difficult and troublesome constitutional questions at this juncture. Rather, we remand to the district court for a determination whether, assuming arguendo that such a claim for damages might be founded directly upon the Fourteenth Amendment and 28 U.S.C. § 1331(a), it would in all events be time-barred against the City. This conclusion is dictated, in large measure, by the familiar principle that we should not reach out to decide constitutional questions unnecessarily. See, e. g.," }, { "docid": "23311094", "title": "", "text": "(E.D.N.Y.1975); Mukmuk v. Commissioner of Dep’t Correctional Services, 369 F.Supp. 245 (S.D.N.Y.1974). . Black v. United States, 534 F.2d 524 (2d Cir. 1976) . One issue that was not addressed by the parties is the theory upon which plaintiff sues the federal defendants in their individual capacities. Although section 1985 of the Civil Rights Act does not require a defendant to have acted under color of state law, section 1983 does contain such a provision and is thus not applicable to persons acting under color of federal law. Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605, 650 n. 2, 652 (1963); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346-47 (2d Cir. 1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965). Presumably, plaintiff relies upon Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as establishing a constitutional cause of action against federal officials for deprivation of her fourth and fifth amendment rights. She does not, however, adequately specify how these rights have been infringed. And while plaintiffs complaint may be read to assert a cause of action against federal officials arising directly under the fourteenth amendment, our disposition of the present motion makes it unnecessary to pass upon whether such a cause of action exists. The Court of Appeals has considered, but not decided, the question. Brault v. Town of Milton, 527 F.2d 730, 738 (2d Cir. 1975) (en banc). . For example, unspecified federal agencies are alleged “on information and belief’ to have classified plaintiff as “undesirable” and to have subjected her to intensive wiretapping and other “counterintelligence” activities. Not a single factual allegation is put forth in substantiation of this conclusory claim. Apparently plaintiff believes that her repeated failure to obtain employment or admittance into graduate programs themselves warrant an inference of a government conspiracy against her; yet to accept such reasoning would surely be to stretch the fabric of logic and reality to the" }, { "docid": "6415981", "title": "", "text": "also inapposite. In a prior decision in Harkless by the Court of Appeals for the Fifth Circuit, the court observed that a Texas school district “is of the nature of a municipality.” Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971). This was the basis for the district court’s subsequent decision that the school district was not a person against whom an action under section 1983 could be maintained. Here, of course, the defendants are not municipalities. Even if the City University is deemed to be the real party in interest, it is at best an agency of a municipality which is subject to suit under section 1983. Forman v. Community Services, Inc., supra. Moreover, the complaint in this action also alleges jurisdiction pursuant to 28 U.S.C. § 1331 to hear a cause of action under the due process and equal protection clauses of the Fourteenth Amendment. The plaintiff earned an annual salary to $17,550 at the time of her termination in 1975. There is therefore no reason to believe that the $10,000 jurisdictional amount required under 28 U.S.C. § 1331(a) has not been met. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a suit brought, inter alia, under section 1331(a), the Court held that money damages could be recovered for injuries resulting from the violation of constitutional rights. The Second Circuit extended Bivens to a suit alleging violation of due process by a city in Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975) although the complaint therein was later dismissed on other grounds on rehearing en banc. Id. at 736 — 41. Bivens has also been applied to claims involving a number of different constitutional protections. See cases cited in Buck v. Board of Education, Civ. No. 71-954 (E.D.N.Y. July 16, 1975), quoted in part in Lombard, supra, 407 F.Supp. at 1170. Thus, even if the defendants are not persons within the meaning of section" }, { "docid": "3176202", "title": "", "text": "practices in the sale of cooperative stock. Whether it were to recoup advances already made or to retain a particular reputation even a nonprofit entity may encounter pressures which might have the tendency to change an otherwise objective and fair sales pitch to something likely to entice and mislead. We hold, then, that a share in Riverbay is both “stock” and an “investment contract” under the Securities Acts. We pass to the special defenses of the State Housing Finance Agency and of the State of New York. The State Housing Finance Agency argues that it may not be charged with violation of § 1983. While municipal corporations, that is, municipalities, are not deemed “persons” under the Civil Rights Act, see Monroe v. Pape, 365 U.S. 167, 187-190, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960), “agencies” have always been so deemed. See, e. g., Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), cert. denied 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1971); Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968). The agency here moreover, is not pro- teeted by sovereign immunity. First, Private Housing Finance Law § 32(5) expressly waives sovereign immunity for the agency. Even were such a waiver absent, the agency is not an “alter ego” of the state, see Whitten v. State University Construction Fund, 493 F.2d 177 (1st Cir. 1974) (Moore, J.), and hence not a recipient of sovereign immunity. The State Housing Finance Agency has the express authority to sue and be sued; it acts only as a credit or financing entity; it apparently has no power to take property in its own name or in the name of the State. In Whitten the court found “ultimate State liability” to be the most crucial determination. Here the State is expressly not liable for the debts of the agency. Private Housing Finance Law § 46(8). Thus, upon these considerations it would appear that the agency here is sufficiently independent of the State as not to enjoy sovereign immunity. Compare Matherson v. Long Island State Park" }, { "docid": "13623073", "title": "", "text": "Authority was a public corporation. Holmes, supra at 263. For these reasons, this Court declines to follow Forman and relies instead on the cases cited. . Defendant Gilbert is being sued in two official capacities; as commissioner of the PSB and as chairman of the PSB. As is evident from subsequent discussion herein, this twofold official capacity is of no consequence to the present motions. . 29 Y.S.A. §§ 1401 & 1403 (1972). . Accord, Klein v. New Castle County, 370 F.Supp. 85 (D.Del.1974) (declaratory relief against county officials granted). . Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969); Griffin v. Beckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). . Accord, Hahn v. Sargent, 388 F.Supp. 445, 449 (D.Mass.1975); Phillips v. Singletary, 350 F.Supp. 297, 301-303 (D.S.C.1972); McIntosh v. Garofalo, 367 F.Supp. 501, 505-506 (W.D.Pa.1973). . See McTighe v. New England Telephone & Telegraph Co., 216 F.2d 26, 29 (2d Cir. 1954); Trybulski v. Bellows Palls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117 (1941). . This alleged act of ordering the disconnection of the plaintiff’s service was also a discretionary one, falling within the commissioners’ judicial function to determine what action should be taken in the particular situation then presented. . Section 1986 provides : Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured . . . for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented . The complaint against Walter Cook, as manager of VEC, was dismissed with the plaintiff’s consent at the hearing. The Court grants the plaintiff’s motion to amend his complaint to assert a pendent, Vermont common law claim against the defendant VEC. The Court also dismisses on its own motion the § 1985(2) claim against VEC for the reasons stated" }, { "docid": "13623056", "title": "", "text": "asserted against defendants Gilbert and Ruggles insofar as relief by way of a pecuniary award is sought, and (4) the § 1986 claim against the defendant Cheney. However, the motions to dismiss of the defendants Gilbert and Ruggles are denied in that aspect of the complaint based on § 1983 which seeks declaratory relief against them in their individual and official capacities. A. Defendant Vermont Public Service Board The plaintiff alleges that the defendant PSB conspired to violate and violated his due process and equal protection rights as guaranteed by the Fourteenth Amendment by denying the plaintiff a hearing prior to the termination of his electric service. On the strength of this claimed deprivation, the plaintiff seeks declaratory relief and money damages against the PSB under 42 U.S.C. §§ 1983 and 1985(2) (1970). Ordinarily the disposition of a federal suit against the PSB would require a determination by this Court of whether or not PSB is, in actuality, an “alter-ego” of the state, with the State being the real party in interest. George R. Whitten, Jr., Inc. v. State University Construction Fund, 493 F.2d 177, 179-180 (1st Cir. 1974). This inquiry would give rise to Eleventh Amendment considerations and questions of sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). However, we need not reach these questions here for the reason that the PSB is not a “person” within the meaning of the Civil Rights Statutes. Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir. 1969), rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Sykes v. California, 497 F.2d 197, 201 (9th Cir. 1974); Surowitz v. New York City Employees’ Retirement System, 376 F.Supp. 369, 371 (S.D.N.Y.1974). Since the plaintiff’s complaint fails to state a claim upon which relief can be granted against the PSB, its motion to dismiss must be granted. B. Defendants Gilbert and Ruggles The plaintiff claims that these defendants, while members of the PSB, engaged in a conspiracy that violated his due process and equal protection rights in denying him a hearing prior" } ]

[ { "docid": "2556332", "title": "", "text": "the alleged violations, that they could respond orally or in writing, that they could be represented by counsel, and that they could face disciplinary action, including termination. Both Plaintiffs attended the hearing, accompanied by a union representative. Plaintiffs were terminated as of May 12,1992. The City held full post-termination eviden-tiary hearings on July 14,1992 for Mr. Smith and on July 15, 1992 for Mr. Benavidez. Plaintiffs, while not represented by counsel, were again accompanied by a union representative. After these hearings, the City Personnel Hearing Board affirmed Mr. Smith’s termination, and modified Mr. Benavidez’s termination to a 90-day suspension without pay followed by reinstatement. Plaintiffs had the right to appeal in state district court, but chose not to do so. Instead, Plaintiffs Smith and Benavidez filed suit under 42 U.S.C. § 1983, claiming that their Fourth Amendment rights were violated by an unreasonable search and that their Fourteenth Amendment Due Process rights were violated by the City’s pre- and post-termination grievance procedures. Summary judgment was granted for the City on both claims. Discussion We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). The substantive law determines which facts are material. “Only 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Rivendell Forest Prod. v. Georgia-Pacific Corp., 28 F.3d 1042, 1045 (10th Cir.1994). I. Fourth Amendment Claims It is well established that a urinalysis drug test required by a government employer for the purpose of detecting illegal drug" } ]

[ { "docid": "7854271", "title": "", "text": "August 2, Mr. Meyer filed this action against National Farmers Union, Rain and Hail, and Jerry Conlon for: (1) breach of contract; (2) negligent document preparation; (3) negligent misrepresentation; (4) bad faith/breach of duty of good faith and fair dealing in insurance contracts; (5) abuse of process; (6) intentional interference with a contractual relationship; and (7) outrageous eonduct/intentional infliction of emotional distress. The district court granted summary judgment for the defendants on all of Mr. Meyer’s claims, and he appealed. However, he did not pursue his intentional interference with a contractual relationship claim before our Court, and we consider that claim abandoned. We will address his other arguments in turn. II. ANALYSIS A. Standard of Review We review a summary judgment ruling de novo, applying the same legal standard as used by the district court pursuant to Fed. R.Civ.P. 56(c). See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (quoting Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995)). A “material fact is one which might affect the outcome of the dispute under the applicable law.” Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995). “An issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant.” Kaul, 83 F.3d at 1212 (quoting Wolf, 50 F.3d at 796). We examine the factual record and reasonable inferences drawn from it in the light most favorable to the non-movant. See id. “If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court.” Id. (quoting Wolf, 50 F.3d at 796). B. Preemption In State of Kansas ex rel. Todd v. United States, 995 F.2d 1505 (10th Cir.1993), our Court held that “the FCIC can promulgate regulations preempting state laws" }, { "docid": "12647544", "title": "", "text": "In general, a statute or its amendment will only have prospective effect unless it clearly provides otherwise. Harris v. Freeman, 881 P.2d 104, 106-07 (Okla.Ct.App.1994) (citing Alldredge v. Oklahoma Firefighters Pension and Retirement Bd., 816 P.2d 580 (Okla.Ct.App.1991)); see also Quinlan v. Koch Oil Co., 25 F.3d 936 (10th Cir.1994). Nothing in § 706 implies that the legislature meant for it to be applied retroactively. Since the Debtor filed his petition before November 1, 1997, the preamendment language of the statute applies and the lien did not attach to the homestead. Where the lien does not attach to the homestead, there is nothing to avoid. See David Dorsey Distrib., Inc. v. Sanders (In re Sanders), 39 F.3d 258, 262 (10th Cir.1994) (“[W]hen state law does not allow a lien to attach to exempt property, § 522(f) is superfluous and without application.”). Therefore, McCart’s lien does not attach to the Debtor’s homestead and he cannot avoid it under § 522(f)(1). While the bankruptcy court erred in its application and interpretation of Okla. Stat. tit. 12§ 706 and § 522(f), we nonetheless affirm its order as it reached the correct result. See Coats v. Ogg (In re Coats), 232 B.R. 209 (10th Cir. BAP 1999). Thus, while the bankruptcy court erred in holding that McCart’s judgment attached to the Debtor’s homestead, the result is the same. The Debtor is not entitled to avoid the lien. Summary Judgment The Debtor challenges the bankruptcy court’s grant of summary judgment on McCart’s dischargeability complaint on a number of grounds. The bankruptcy court found that the District Court default judgment was sufficient to support a grant of summary judgment holding McCart’s claim to be nondischargeable under 11 U.S.C. § 523(a)(2)(A) and (B). The grant or denial of summary judgment is reviewed de novo. The Court applies the same standard used by the bankruptcy court under Federal Rule of Civil Procedure 56, as made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056. See, e.g., United States v. Sackett, 114 F.3d 1050 (10th Cir.1997); Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997), cert. denied," }, { "docid": "22935117", "title": "", "text": "(11th Cir.1995) (Title VII and ADEA); Birkbeck, 30 F.3d at 511 (ADEA); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir.) (Title VII), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587-88 (9th Cir.1993) (Title VII and ADEA), cert. denied sub nom Miller v. LaRosa, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), but it is> also in accordance with the only circuit courts that have directly addressed the issue of individual liability under the ADA. See Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996); AIC Sec. Investigations, 55 F.3d at 1282. As a result of our holding, the individual defendants named in this action may not be held liable for discrimination or retaliation in violation of the ADA. III. The district court disposed of Plaintiffs remaining claims on summary judgment. See Butler, 974 F.Supp. at 1408. We review the grant or denial of summary judgment de novo, and we apply the same legal standard employed by the district court pursuant to Federal Rule of Civil Procedure 56(c). See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). Summary judgment is appropriate 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.” Fed.R.Civ.P. 56(c). “ ‘When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court.’ ” Kaul, 83 F.3d at 1212 (quoting Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995)). A. In his complaint, Plaintiff alleged that Defendants violated his First Amendment rights by terminating him for reporting employee thefts and for providing truthful testimony at an arbitration hearing involving a dispute between" }, { "docid": "23218887", "title": "", "text": "Woodman’s work limitation tolerances. However, the record contains no evidence that any physical therapist or treating physician has ever approved the Patchup-Nixie assignment as consistent with Ms. Woodman’s disabilities after her failed attempt to perform that job assignment in November 1992. As of this date, Ms. Woodman remains in the temporary limited duty job assignment at the Hol-laday Post Office and continues to receive the full salary of a distribution clerk. II. We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. When applying this standard, we examine the factual record and reasonable inferences drawn therefrom in the light most favorable, to the party opposing summary judgment. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (quoting Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995)). The' nonmovant is generally “given wide berth to prove a factual controversy exists.” Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995). “[T]he relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993) (quotation omitted). Ms. Woodman contends that the USPS, by failing to reassign her to a permanent position within her medical restrictions, engaged in unlawful discrimination based on her disability in violation of the Rehabilitation Act. Section 504(a) provides in relevant part: No otherwisé qualified individual -with a disability in the United States ... shall, solely by reason of his or her disability, be ... subjected to discrimination under any program or activity receiving Federal financial assistance or under any program of activity conducted by an Executive agency or" }, { "docid": "14470938", "title": "", "text": "367 U.S. at 749, 81 S.Ct. at 1789). Thus, we apply the Lehnert three-part test both to determine whether an assessment violates § 2, Eleventh, of the Railway Labor Act and to determine whether an assessment violates the First and Fifth Amendments. Ill Having placed the matter in context, we now turn to Mr. Lancaster’s contention the district court erred in granting summary judgment in favor of United and ALPA on his claim the Eastern sympathy strike assessment violated § 2, Eleventh, of the Railway Labor Act, 45 U.S.C. § 152, and the First and Fifth Amendments. “We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed. R.Civ.P. 56(c).” Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(C).’” Universal Money Ctrs., Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994) (quoting Fed.R.Civ.P. 56(c)). “When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Applied Genetics Int’l., Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). As the district court recognized, whether the Eastern sympathy strike assessment levied against United’s pilots was “germane to collective bargaining activity” depends on two fairly discrete subissues: first, whether the assessment was germane even though it financed a strike by ALPA members at Eastern, not United; and second, whether it was germane even though the sympathy strike was designed to support striking members of another union, the Machinists, rather than to further directly the Eastern pilots’ own interests in collective bargaining. After deciding each subissue in ALPA’s and United’s favor, the district court stated with" }, { "docid": "4543288", "title": "", "text": "the Arbitration Award as part of a proceeding to confirm the Arbitration Award. See Motion to Extend — ¶¶ 4, 5, 6 — Case No. 11-09-15348 JA — Docket No. 237. At a preliminary hearing on the Motion to Extend, the parties agreed that the Deermans will have thirty days following the Court’s ruling on the instant Motion within which to file an amended plan and disclosure statement. SUMMARY JUDGMENT STANDARDS Summary Judgment, governed by Rule 56, Fed.R.Civ.P., made applicable to adversary proceedings by Rule 7056, Fed. R.Bankr.P., will be granted when the mov-ant demonstrates that theré is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Rule 56(a), Fed.R.Civ.P. In order to defeat a motion for summary judgment, the opposing party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citations omitted). When evaluating a motion for summary judgment, the Court must view the facts in the light most favorable to the party opposing summary judgment. Harris v. Beneficial Oklahoma, Inc., (In re Harris), 209 B.R. 990, 995 (10th Cir. BAP 1997) (“When applying this standard, we are instructed to ‘examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’”) (quoting Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995)) (quoting Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) (additional internal quotation marks omitted)). Plaintiffs’ statement of facts not in genuine dispute is based on the Findings of Fact and Conclusions of Law, the Interim Award, and the Arbitration Award entered in the Arbitration Case. The Deermans do not dispute that the Arbitrator made such findings and conclusions as part of the Arbitration Case, but nevertheless take issue with several of the Plaintiffs’ undisputed facts. As determined" }, { "docid": "15400208", "title": "", "text": "constitutional rights and, even if they had, the doctrine of qualified immunity absolved them of liability. In April 1997, the district court denied Jurasek’s request for injunctive relief and granted defendants’ motion for summary judgment. II. This court reviews a grant of summary judgment de novo, applying the same legal standard used by the district court. Sundance Assocs., Inc. v. Reno, 139 F.3d 804, 807 (10th Cir.1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e). “When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court.” Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995) (internal citation and quotations omitted). III. It is well established that an individual has a liberty interest in “avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); see Walters v. Western State Hosp., 864 F.2d 695, 698 (10th Cir.1988). It is also well established that when an individual is confined in a state institution, individual liberties must be balanced against the interests of the institution in preventing the individual from harming himself or others residing or working in the institution. Harper, 494 U.S. at 222-23, 110 S.Ct. 1028; Bee v. Greaves, 744 F.2d 1387, 1394 (10th Cir.1984) (Bee I). In Harper, the Supreme Court applied this balancing test and concluded “the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with anti-psychotic drugs against his will[] if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical" }, { "docid": "1349433", "title": "", "text": "Each issue is discussed below. DISCUSSION Federal Rule of Civil Procedure 56(c), which is made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056, provides, in relevant part, that: The judgment sought 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. Fed.R.Civ.P. 56(c); Fed. R. Bankr.P. 7056. When applying this standard, we are instructed to “ ‘examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’” Wolf, 50 F.3d at 796 (quoting Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)); accord Sackett, 114 F.3d at 1051. The Tenth Circuit has stated: While the movant bears the burden of showing the absence of a genuine issue of material fact, the movant need not negate the non-movant’s claim, but need only point to an absence of evidence to support the non-movant’s claim. If the movant carries this initial burden, the non-movant may not rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof. Wolf, 50 F.3d at 796 (citations omitted) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994); Applied Genetics, 912 F.2d at 1241). With these legal standards in mind, we now turn to the merits of this case. The Bankruptcy Court Did Not Err In Denying Beneficial’s Motion For Summary Judgment The Bankruptcy Court denied Beneficial’s motion for summary judgment because it was not supported by evidence that would be admissible at trial." }, { "docid": "6427704", "title": "", "text": "in prohibiting Ms. Sey-more from introducing the “Far Side” cartoon into evidence. II. ANALYSIS A. International Brotherhood of Electrical Workers Summary Judgment Motion Ms. Seymore first argues the district court erred in granting summary judgment in favor of the International Brotherhood of Electrical Workers. We review the grant or denial of a motion for summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed. R.Civ.P. 56(c). Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995). Under Rule 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue of material fact is genuine where a reasonable jury could return a verdict for the party opposing summary judgment. Wolf, 50 F.3d at 796 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). In applying the summary judgment standard, we must examine the factual record and reasonable inferences therefrom in the light most favorable to the non-movant. Wolf, 50 F.3d at 796. Although the arguments in Ms. Seymore’s pro se brief are not perfectly clear, we. assume Ms. Seymore argues she presented evidence sufficient to establish union representatives engaged in unlawful sexual harassment, thus exposing the union to direct liability under Title VII. It is well settled that a plaintiff may establish a violation of Title VII by showing discrimination based on sex has created a hostile or abusive working environment. Meritor Sav. Bank, 477 U.S. at 66, 106 S.Ct. at 2405. To establish a sexually hostile work environment existed, a plaintiff must prove the following elements: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex;' and (4) the harassment altered a term, condition, or privilege of the plaintiffs employment and created an abusive working environment. See Marquart" }, { "docid": "17562081", "title": "", "text": "BACKGROUND GREENE, District J. On November 13, 1992, plaintiffs filed this toxic tort ease in state court at Beaumont, Texas. After receipt of answers to interrogatories, defendant General Electric (GE) removed the case to the United States District Court for the Eastern District of Texas. The Texas district court judge upheld removal jurisdiction, denied plaintiffs’ motion to remand and transferred venue to the Western District of Oklahoma as a more convenient forum. The Oklahoma district court judge granted summary judgment in favor of defendants. Plaintiffs appealed, arguing that removal was untimely and summary judgment unwarranted. STANDARD OF REVIEW Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp.v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo, applying the same standard as the district court. See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). “[We] examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine [whether] the substantive law was correctly applied,” and in so doing “we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing” the motion. Applied Genetics Int’l, Inc. v. First Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir.1990). However, “where the non moving party will bear the burden of proof at trial on a dispositive issue” that party must “go beyond the pleadings” and designate specific facts so as to “make a showing sufficient to establish the existence of an element essential to that party’s case” in order to survive summary judgment. Celotex, 477 U.S. at 322, 324, 106 S.Ct. 2548. A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Vitkus v. Beatrice" }, { "docid": "11283274", "title": "", "text": "been eliminated. Accordingly, the district court construed Mr. Garcia’s claims to allege that PCC discriminated against him by failing to hire him for the newly created position. The district court then noted that because Mr. Garcia presented no direct evidence of discrimination, the analysis of his claim necessarily would proceed pursuant to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Based upon its conclusions that (1) PCC eliminated Mr. Garcia’s original position and (2) Mr. Garcia faded to apply for the new position, the court further concluded that Mr. Garcia was unable to establish a prima facie case for a failure to hire. The district court also entered an alternative finding considering the possibility that Mr. Garcia’s position had not been eliminated. Even if this was the case, the district court reasoned, Mr. Garcia, because he could not demonstrate any adverse effect, still could not establish a prima facie case of unlawful discharge. We conclude that (1) whether PCC eliminated Mr. Garcia’s job is a disputed issue of material fact, and (2) whether Mr. Garcia can demonstrate an adverse effect from PCC’s alleged discrimination is also a disputed issue of material fact; thus, we reverse and remand. II. DISCUSSION We review the grant or denial of a motion for summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). Under Rule 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”. Fed.R.Civ.P. 56(c). In applying the summary judgment standard, we must examine the factual record and reasonable inferences therefrom in the light most favorable to the non-movant. Wolf, 50 F.3d at 796. A. Whether PCC Eliminated Mr. Garcia’s Position is a Disputed Issue of Material Fact 1. Material Issue of" }, { "docid": "12647546", "title": "", "text": "— U.S. —, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Benavidez v. City of Albuquerque, 101 F.3d 620, 623 (10th Cir.1996); Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 893 (10th Cir.1994). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, the Court examines the factual record in the light most favorable to the nonmoving party. See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). The party opposing summary judgment may not rely on mere allegations or denials in its pleadings or briefs, but must identify specific and material facts for trial and significant probative evidence supporting the alleged facts. Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1284 (10th Cir.1988). There is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986). “If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the [trial court].” Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995) (citation omitted). The Debtor does not dispute MeCart’s rendition of the facts in either his trial court or his appellate court brief. While he asserts that McCart received settlements from other defendants totaling more than $200,000.00, the Debtor failed to provide the bankruptcy court with any evidence in support of his allegations. McCart, in compliance with the Rule, provided copies of the District Court default judgment, pleadings, and affidavits in support of the motion for summary judgment. However, the Debtor did not meet his burden. Neither his brief nor his affidavit" }, { "docid": "1349425", "title": "", "text": "in this appeal are appropriate for review under section 158(a)(1). Ordinarily, the denial of Beneficial’s motion for summary judgment would not be an appealable final order because it does not dispose of the entire case but requires it to be resolved at trial. See, e.g., Swint v. Chambers County Comm’n, 514 U.S. 35, 40-43, 115 S.Ct. 1203, 1207-1208, 131 L.Ed.2d 60 (1995); Schmidt v. Farm Credit Servs., 977 F.2d 511, 513 n. 3 (10th Cir.1992); see also Quackenbush v. Allstate Ins. Co., -U.S.-,-, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) “[A] decision is ordinarily considered final and appealable under [section 158(a)(1) ] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). The Tenth Circuit has made clear, however, that: Where we reverse a summary judgment order in favor of one party, ... we will review the denial of the other party’s cross-motion for summary judgment under the same standards applied by the [trial] court so long as it is clear that the party opposing the cross-motion had an opportunity to dispute the material facts. McIntosh v. Scottsdale Ins. Co., 992 F.2d 251, 253 (10th Cir.1993). Since we have determined that the order granting the Debt- or’s motion for summary judgment should be reversed, we will consider the order denying Beneficial’s motion for summary judgment as the Debtor had an opportunity to dispute the facts asserted by Beneficial. STANDARD OF REVIEW The grant or denial of summary judgment is reviewed de novo. We apply the same standard used by the Bankruptcy Court under Federal Rule of Civil Procedure 56, as made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056. See, e.g., United States v. Sackett, 114 F.3d 1050, 1051 (10th Cir.1997); Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997); Benavidez v. City of Albuquerque, 101 F.3d 620, 623 (10th Cir.1996); Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995); Meredith v. Beech Aircraft" }, { "docid": "10578926", "title": "", "text": "Company objected to the motion. See Docket Nos. 181 and 132. On April 7, 2010, the District Court entered a Memorandum Opinion and Order denying the motion to withdraw the reference. See Case No. 09-CV-00922; Docket No. 18. On May 25, 2010 this Court held oral argument on the Nation’s and Platinum’s cross motions for summary judgment, and set a schedule for supplemental briefs. See Order, Docket No. 220. SUMMARY JUDGMENT STANDARDS The Court should grant summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), made applicable to adversary proceedings by Fed.R.Bankr.P. 7056. In considering a motion for summary judgment, the Court must “ ‘examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’ ” Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995) (quoting Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). Cross motions for summary judgment raise an inference that summary judgment may be appropriate. Crossingham Trust v. Baines (In re Baines), 337 B.R. 392, 396 (Bankr.D.N.M.2006). Nevertheless, before a Court may grant summary judgment, the Court must satisfy itself that the requesting party has independently satisfied the requirements of Rule 56(c). See Harris v. Beneficial Oklahoma, Inc., (In re Harris), 209 B.R. 990, 998 (10th Cir. BAP 1997); see also, Renfro v. City of Emporia, 948 F.2d 1529, 1534 (10th Cir.1991) (stating that a cross motion for summary judgment does not relieve the court of its obligation to determine if a genuine issue of material fact exists). “[A] party opposing a properly supported motion for summary judgment ‘may not rest on mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial’ ” through affidavits or other supporting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242," }, { "docid": "12647545", "title": "", "text": "and § 522(f), we nonetheless affirm its order as it reached the correct result. See Coats v. Ogg (In re Coats), 232 B.R. 209 (10th Cir. BAP 1999). Thus, while the bankruptcy court erred in holding that McCart’s judgment attached to the Debtor’s homestead, the result is the same. The Debtor is not entitled to avoid the lien. Summary Judgment The Debtor challenges the bankruptcy court’s grant of summary judgment on McCart’s dischargeability complaint on a number of grounds. The bankruptcy court found that the District Court default judgment was sufficient to support a grant of summary judgment holding McCart’s claim to be nondischargeable under 11 U.S.C. § 523(a)(2)(A) and (B). The grant or denial of summary judgment is reviewed de novo. The Court applies the same standard used by the bankruptcy court under Federal Rule of Civil Procedure 56, as made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056. See, e.g., United States v. Sackett, 114 F.3d 1050 (10th Cir.1997); Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Benavidez v. City of Albuquerque, 101 F.3d 620, 623 (10th Cir.1996); Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 893 (10th Cir.1994). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, the Court examines the factual record in the light most favorable to the nonmoving party. See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). The party opposing summary judgment may not rely on mere allegations or denials in its pleadings or briefs, but must identify specific and material facts for trial and significant probative evidence supporting the alleged facts. Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1284 (10th Cir.1988). There is" }, { "docid": "1349426", "title": "", "text": "under the same standards applied by the [trial] court so long as it is clear that the party opposing the cross-motion had an opportunity to dispute the material facts. McIntosh v. Scottsdale Ins. Co., 992 F.2d 251, 253 (10th Cir.1993). Since we have determined that the order granting the Debt- or’s motion for summary judgment should be reversed, we will consider the order denying Beneficial’s motion for summary judgment as the Debtor had an opportunity to dispute the facts asserted by Beneficial. STANDARD OF REVIEW The grant or denial of summary judgment is reviewed de novo. We apply the same standard used by the Bankruptcy Court under Federal Rule of Civil Procedure 56, as made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056. See, e.g., United States v. Sackett, 114 F.3d 1050, 1051 (10th Cir.1997); Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997); Benavidez v. City of Albuquerque, 101 F.3d 620, 623 (10th Cir.1996); Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 893 (10th Cir.1994). The propriety of rulings on evidentiary matters, although decided in the summary judgment context, are reviewed for abuse of discretion. Peck v. Horrocks Eng’rs, Inc., 106 F.3d 949, 956 (10th Cir.1997) (citing cases); Duffee By and Through Thornton v. Murray Ohio Mfg. Co., 91 F.3d 1410, 1411 (10th Cir.1996). BACKGROUND The chapter 7 Debtor commenced an adversary proceeding against Beneficial pursuant to 11 U.S.C. § 506(a) requesting a determination by the Bankruptcy Court “as to the validity and extent of the interest of Beneficial ... in certain property of the estate and Debtor.” In her complaint, the Debtor alleged that Beneficial had asserted a claim against the Debtor that was “secured by a purchase money security interest in certain property of the estate[,]” and had filed an objection to the Debtor’s claim of exemptions wherein it asserted a secured claim against the “property of the estate and/or Debtor.” To the extent that Beneficial’s claim was found to be unsecured by the Bankruptcy Court, the Debtor sought to “avoid" }, { "docid": "10345336", "title": "", "text": "to the Kansas Supreme Court. In a thorough and well-reasoned opinion, the Kansas Supreme Court affirmed the state court. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 61 P.3d 68 (2002). On August 24, 2001, Shore filed a voluntary petition under Chapter 7 of the Bankruptcy Code. On October 11, 2001, McCain filed a “Complaint to Determine Dis-chargeability of Debt,” alleging that its debt was nondischargeable under §§ 523(a)(6) or 523(a)(2)(A). Subsequently, on April 9, 2003, McCain filed a Motion for Summary Judgment solely on the § 523(a)(6) claim. In its Motion, McCain argued that the UFTA judgment established all the elements of its § 523(a)(6) claim. The bankruptcy court entered an Order Granting the Summary Judgment on January 29, 2004. On March 9, 2004, the bankruptcy court dismissed the remaining claim under § 523(a)(2)(A) as moot, declaring that the judgment was now final. This appeal is a timely appeal from a final order because following the partial summary judgment the bankruptcy court certified a final order in accordance with Federal Rule of Civil Procedure 54(b). The parties have consented to this Court’s jurisdiction because they have not elected to have the appeal heard by the United States District Court for the District of Kansas. 28 U.S.C. § 158(b)-(c); Fed. R. Bankr.P. 8001(e). II. DISCUSSION Summary judgment is provided for through Federal Rule of Bankruptcy Procedure 7056, which adopts the Federal Rule of Civil Procedure 56 (“Rule 56”). As explained in Rule 56(c), summary judgment is appropriate when after an examination of the record, the court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The burden of establishing summary judgment is on the moving party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). We review a bankruptcy court’s grant of summary judgment de novo. Spears v. St. Paul Ins. Co. (In re Ben Kennedy & Assocs., Inc.), 40 F.3d 318, 319 (10th Cir.1994). When applying this standard, we review the factual" }, { "docid": "10345337", "title": "", "text": "of Civil Procedure 54(b). The parties have consented to this Court’s jurisdiction because they have not elected to have the appeal heard by the United States District Court for the District of Kansas. 28 U.S.C. § 158(b)-(c); Fed. R. Bankr.P. 8001(e). II. DISCUSSION Summary judgment is provided for through Federal Rule of Bankruptcy Procedure 7056, which adopts the Federal Rule of Civil Procedure 56 (“Rule 56”). As explained in Rule 56(c), summary judgment is appropriate when after an examination of the record, the court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The burden of establishing summary judgment is on the moving party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). We review a bankruptcy court’s grant of summary judgment de novo. Spears v. St. Paul Ins. Co. (In re Ben Kennedy & Assocs., Inc.), 40 F.3d 318, 319 (10th Cir.1994). When applying this standard, we review the factual record in the light most favorable to the nonmoving party to determine if there are genuine issues of material fact and to discern if the bankruptcy court correctly applied the relevant substantive law. Jenkins v. Wood, 81 F.3d 988, 991 (10th Cir.1996). In this case the bankruptcy court granted summary judgment in favor of McCain, finding its claim nondischargeable under § 523(a)(6). Specifically the bankruptcy court held that when the state court found Shore liable to McCain under the UFTA and assessed punitive damages for that violation, those findings established all the elements of § 523(a)(6), and as a matter of law, the debt was nondischargeable. Shore, 305 B.R. at 570. Collateral estoppel applies in bankruptcy court actions to determine the dischargeability of a debt. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). “Under collateral estoppel, ‘once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of" }, { "docid": "11283275", "title": "", "text": "a disputed issue of material fact, and (2) whether Mr. Garcia can demonstrate an adverse effect from PCC’s alleged discrimination is also a disputed issue of material fact; thus, we reverse and remand. II. DISCUSSION We review the grant or denial of a motion for summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). Under Rule 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”. Fed.R.Civ.P. 56(c). In applying the summary judgment standard, we must examine the factual record and reasonable inferences therefrom in the light most favorable to the non-movant. Wolf, 50 F.3d at 796. A. Whether PCC Eliminated Mr. Garcia’s Position is a Disputed Issue of Material Fact 1. Material Issue of Fact The district court concluded that whether or not Mr. Garcia’s position was eliminated was the “key issue” in this case because resolution of that issue would enable the court to determine “whether the case should be analyzed as an unlawful discharge case or a failure to promote, hire, or rehire case.” Aplt’s App. vol. 1, ex. 5 (Order, filed May 31, 2001). “A disputed fact is ‘material’ if it might affect the outcome of the suit under the governing law.” Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir.1997). We agree with the district court that the question of job elimination is a material issue of fact in this case. 2. Disputed Issue of Fact After noting the significance of job elimination, the district court proceeded to compare the old and new job descriptions. Based on this comparison, the district court determined that, under the new description: “The expectations of the Golf Course Superintendent changed significantly.” Aplt’s App. vol. 1, ex. 6, at 4 (Order, filed July 12, 2001). The court also noted" }, { "docid": "18977611", "title": "", "text": "standing to pursue their complaint, and that its actions comply with the requirements of the Bankruptcy Code and do not constitute a willful violation of the automatic stay. After consideration of the undisputed facts in light of the applicable statute and relevant case law, the Court finds that the Plaintiffs do not have standing to assert a claim for willful violation of the automatic stay. Further, even if the Plaintiffs’ exemption rights were sufficient to confer standing, the facts of this case do not support a finding that Wells Fargo’s actions are sanctionable. The Court will, therefore, grant summary judgment in favor of Wells Fargo. SUMMARY JUDGMENT STANDARDS It is appropriate for the Court to grant 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), made applicable to adversary proceedings by Fed.R.Bankr.P. 7056. In considering a motion for summary judgment, the Court’must “ ‘examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’ ” Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995) (quoting Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). Cross motions for summary judgment raise an inference that summary judgment may be appropriate. Crossingham Trust v. Baines, (In re Baines), 337 B.R. 392, 396 (Bankr.D.N.M.2006). Nevertheless, before a Court may grant summary judgment, the Court must satisfy itself that the requesting party has independently satisfied the requirements of Rule 56(c), Fed. R.Civ.P. Harris v. Beneficial Oklahoma, Inc., (In re Harris), 209 B.R. 990, 998 (10th Cir. BAP 1997) (citations omitted). See also Renfro v. City of Emporia, 948 F.2d 1529, 1534 (10th Cir.1991) (stating that a cross motion for summary judgment does not reheve the court of its obligation to determine if a genuine issue of material fact exists). FACTS NOT IN GENUINE DISPUTE There is no genuine dispute" } ]

[ { "docid": "19802759", "title": "", "text": "had notice of them. That distinction is, however, immaterial. Even if Valencia-Trujillo did not have notice of the twenty-two additional predicate acts at the outset of the prosecution, he did have notice of them four months before trial. The addition of predicate acts did not prevent a meeting of the minds between the grand jury and the trial jury on the charges for which Valencia-Trujillo was convicted. The original indictment contained “including, but not limited to” language, which is broad enough to cover the predicate acts that were later added. See United States v. Moore, 149 F.3d 773, 782 (8th Cir.1998) (“Given [this] broad language ... it cannot be said that [the defendants were] convicted of a CCE charge not made in the indictment” just because the court admitted evidence of additional acts). Not only that, but the trial jury also returned a special verdict form that identified at least three predicate acts supporting the CCE charge that had also appeared in the original indictment. Valencia-Trujillo was not convicted of any crime or found guilty of any element of a crime that was not charged by the grand jury. There was no violation of the Grand Jury Clause. III. Valencia-Trujillo next contends that the district court erred in denying his motion for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), in which he sought “to invalidate his arrest and involuntary extradition on the basis of the government’s violation of the Fourth and Fourteenth Amendments.” He complains that the court denied him an opportunity to show that FBI Agent Huffs affidavit, which was the sole factual foundation for all documents sent to Colombia with the extradition request, contained false statements that were made knowingly and intentionally or with reckless disregard for the truth. He also argues that Colombia extradited him with the understanding that there was sufficient evidence of conduct occurring after December 17, 1997, as the affidavit indicated, when in fact there was not enough supporting evidence without the false statements. A Franks hearing is required when “the defendant makes a" } ]

[ { "docid": "19802741", "title": "", "text": "a court order issued by a foreign authority, which would entail going beyond the scope of the extradition proceeding and interfering with the sovereignty of the country requesting extradition.” Addressing Valencia-Trujil lo’s argument about the false statements presented in support of the extradition request, the Resolution stated that those were “issues to be presented during the course of the criminal proceedings of that country, to disprove the accusations and the supporting evidence in whatever manner available the competent authorities provide for.” Resolution No. 37 further stated: The requesting country is bound by the response given by the requested country and may try the extradited person only for those charges for which he was requested, and for those acts which took place after December 17, 1997, which are justified according to [the diplomatic note]. Valencia-Trujillo was extradited to the United States, and he initially appeared in district court in March 2004. Before trial Valencia-Trujillo filed “Defendant’s Motion to Enforce Rule of Specialty” asserting that the rule required the district court to redact from the indictment all references to events occurring before December 17, 1997 and to “bar[ ] the government from introducing, for any purpose, any evidence originating before that date.” After hearing argument, the magistrate judge issued a Report and Recommendation which the district court adopted in its entirety despite objections by both parties. Valeneia-Trujillo’s motion was granted in part and denied in part. The district court granted Valencia-Trujillo’s motion to the extent that it involved redacting the first twenty-six listed predicate acts. The court also indicated that it would take three other measures to prevent the jury from improperly considering evidence of events occurring before December 17,1997. First, the jury would get a special instruction that it could not find Valencia-Trujillo guilty of any offense unless it found that the charge had been proved beyond a reasonable doubt by evidence of conduct occurring after December 17, 1997. That instruction would be given at the beginning and the end of trial. Second, the jury would get a special verdict form to ensure that any finding of guilt was consistent with" }, { "docid": "19802760", "title": "", "text": "of any element of a crime that was not charged by the grand jury. There was no violation of the Grand Jury Clause. III. Valencia-Trujillo next contends that the district court erred in denying his motion for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), in which he sought “to invalidate his arrest and involuntary extradition on the basis of the government’s violation of the Fourth and Fourteenth Amendments.” He complains that the court denied him an opportunity to show that FBI Agent Huffs affidavit, which was the sole factual foundation for all documents sent to Colombia with the extradition request, contained false statements that were made knowingly and intentionally or with reckless disregard for the truth. He also argues that Colombia extradited him with the understanding that there was sufficient evidence of conduct occurring after December 17, 1997, as the affidavit indicated, when in fact there was not enough supporting evidence without the false statements. A Franks hearing is required when “the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. at 155-56, 98 S.Ct. at 2676. Valencia-Trujillo was not entitled to a hearing for several reasons. The most fundamental reason is that a criminal defendant does not have the right to challenge how he came to be within the jurisdiction of the prosecuting country. In United States v. Alvarez-Machain, the Supreme Court held that the United States had jurisdiction to try a Mexican national even though its agents had forcibly abducted him and hauled him to this country without Mexico’s consent, at least where there was no treaty provision specifically prohibiting the abduction. 504 U.S. 655, 669-70, 112 S.Ct. 2188, 2196-97, 119 L.Ed.2d 441 (1992). It necessarily follows from Alvarez-Machain that the United States does not lose the right to prosecute a foreign citizen it obtains by the lesser misconduct of an agent" }, { "docid": "20305068", "title": "", "text": "not reach a verdict as to the remaining ten counts of false reporting or the one count of conspiracy. The counts upon which the jury was deadlocked were dismissed at the government’s motion. The jury found Singleton guilty of one count of wire fraud, not guilty of two counts of wire fraud, and not guilty of two counts of false reporting under the CEA. The jury did not reach a verdict as to the remaining two counts of false reporting or the one count of conspiracy; these were also dismissed at the government’s motion. The district court later denied Valencia’s and Singleton’s post-verdict motions for judgment of acquittal and motions for a new trial. Valencia now argues: (1) that the government committed misconduct by reading an incriminating letter aloud during opening statements and referring to it again in closing argument, requiring retrial; (2) that the district court abused its discretion in allowing Glenn Labhart to testify about the effects of Valencia’s actions on Dynegy’s bottom line, and that the government’s at-trial disclosure of a fee agree ment with Labhart requires a new trial; (3) that the district court abused its discretion in allowing Matthew O’Loughlin to testify about the effects of false reports on Inside FERGs and NGI’s indices; (4) that cumulative evidentiary errors at trial mandate retrial; (5) that the evidence is insufficient to sustain Valencia’s convictions; and (6) that the district court erred when sentencing Valencia. Singleton joins Valencia’s challenges to the admissibility of O’Loughlin’s testimony, and challenges the sufficiency of the evidence to support the count of wire fraud of which he was convicted. We provide more details herein as they are germane to each issue raised on appeal. II. We first consider whether the government’s reading of a whistle-blower letter by Jeffrey Hornback, a former Dynegy employee, during opening statements was reversible plain error. After detailing the circumstances in which the government used the letter, as well as Hornback’s in-court testimony, we evaluate whether Valencia is entitled to a new trial on this basis. We conclude that no reversible error occurred. A. Following voir dire, the" }, { "docid": "19802770", "title": "", "text": "most recent in a series of Colombian governmental actions affecting the United States’ ability to obtain extraditions from that country. The United States and Colombia signed an extradition treaty in 1979, see Extradition Treaty with the Republic of Colombia, U.S.-Colom., Sept. 14, 1979, S. Treaty Doc. No. 97-8, which became effective three years later. In 1986, the Colombian Supreme Court declared the law ratifying the treaty invalid. See Judgment No. 41, 14 Jurisprudencia y Doctrina 1064 (1986). Colombia’s president briefly revived extraditions by executive decree, but in 1991 the Colombian legislature amended the Colombian constitution to prohibit extradition entirely. See Gallo-Chamorro I, 48 F.3d at 503 n. 1. The 1997 Constitutional amendment discussed in the text was a response to that prohibition. . . After his motion to enforce the rule of specialty was denied, Valencia-Trujillo filed a series of motions seeking to exclude evidence of events occurring before December 17, 1997. Those included: a motion to reconsider the order adopting the magistrate judge's report and recommendation; a motion to prohibit reliance on uncharged predicate acts; a motion in limine; a renewed motion in limine; and a motion to strike twenty-two new predicate acts in an \"unfiled’ ’ indictment. All of those motions were denied. . After the court required the redaction of the pre-December 17, 1997 predicate acts from the indictment and permitted proof of uncharged post-December 17, 1997 conduct, the government disclosed to Valeneia-Trujillo an \"unfiled” indictment listing the predicate acts it planned to prove at trial. Although four of the predicate acts listed in the unfiled indict: ment did not appear on the special verdict form, all twenty-eight predicate acts appearing on the special verdict form were listed in the unfiled indictment. . Although the translated text of the Executive Resolution approving Valencia-Trujillo’s extradition is not entirely clear, it appears to say that no agreement applies to Valencia-Trujillo's extradition. The resolution states “that because of not existing any Agreement applicable to the case it is admissible to act under provisions of the Colombian Penal Code.” . \"The doctrine of dual or double criminality is distinct from the" }, { "docid": "19802734", "title": "", "text": "CARNES, Circuit Judge: “Panama Express” sounds like the name of a train running through Central America, and in a sense it was. It is the code name of a joint operation in which the Coast Guard and a virtual alphabet soup of federal law enforcement agencies (FBI, DEA, ICE, IRS), assisted by state and local agencies, investigated and infiltrated an international drug smuggling and distribution ring in South and Central America. The criminal enterprise was huge, .and the Panama Express had a successful run. In its first seven years it hauled in over 600 tons of cocaine, worth about $8 billion, along with more than 1,200 convictions. This appeal involves one of those convictions. Joaquin Mario Valencia-Trujillo, a Colombian citizen, organized and led the criminal enterprise. After Colombia extradited him to this country, Valeneia-Trujillo was convicted by a jury of money laundering and several drug crimes. He was sentenced to 480 months imprisonment and ordered to forfeit $110 million. His appeal brings us issues involving the rule of specialty in international extradition, the Grand Jury Clause of the Fifth Amendment, Franks v. Delaware, Batson v. Kentucky, and the sufficiency of the evidence. I. Valencia-Trujillo first contends that the district court violated the rule of specialty by prosecuting him for offenses beyond those Colombia authorized in his extradition papers. The rule of specialty “stands for the proposition that the requesting state, which secures the surren der of a person, can prosecute that person only for the offense for which he or she was surrendered by the requested state or else must allow that person an opportunity to leave the prosecuting state to which he or she had been surrendered.” United States v. Gallo-Chamorro (Gallo-Chamorro I), 48 F.3d 502, 504 (11th Cir.1995) (quoting United States v. Herbage, 850 F.2d 1463, 1465 (11th Cir.1988)). The rule is grounded in concerns of international comity. Gallo-Chamorro v. United States (Gallo-Chamorro II), 233 F.3d 1298, 1305 (11th Cir.2000). As we have explained, “[b]ecause the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state" }, { "docid": "19802771", "title": "", "text": "acts; a motion in limine; a renewed motion in limine; and a motion to strike twenty-two new predicate acts in an \"unfiled’ ’ indictment. All of those motions were denied. . After the court required the redaction of the pre-December 17, 1997 predicate acts from the indictment and permitted proof of uncharged post-December 17, 1997 conduct, the government disclosed to Valeneia-Trujillo an \"unfiled” indictment listing the predicate acts it planned to prove at trial. Although four of the predicate acts listed in the unfiled indict: ment did not appear on the special verdict form, all twenty-eight predicate acts appearing on the special verdict form were listed in the unfiled indictment. . Although the translated text of the Executive Resolution approving Valencia-Trujillo’s extradition is not entirely clear, it appears to say that no agreement applies to Valencia-Trujillo's extradition. The resolution states “that because of not existing any Agreement applicable to the case it is admissible to act under provisions of the Colombian Penal Code.” . \"The doctrine of dual or double criminality is distinct from the doctrine of specialty. While specialty focuses on the conduct prosecuted, double criminality refers to the characterization of the relator’s criminal conduct insofar as it constitutes an offense under the law of the respective states ... no state shall use its process to surrender a person for conduct which it does not characterize as criminal.” Gallo-Chamorro II, 233 F.3d at 1306 (citation and internal quotation marks omitted). . In Gallo-Chamom I, we considered and denied the merits of a Colombian defendant's rule of specialty claim. 48 F.3d 502, 504. Before reaching the merits we did not, however, address standing. The jurisdictional holding that the defendant had standing to raise the rule of specialty is only implicit, and for that reason is not binding under the prior panel precedent rule. Main Drug, Inc., v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1231 (11th Cir.2007) (\"If jurisdictional holdings are explicit they must be followed, not so if they are only implicit.”). Gallo-Chamom II was a 28 U.S.C. § 2255 case involving a claim that the defendant's trial counsel" }, { "docid": "19802743", "title": "", "text": "the special instruction. Third, any sentence imposed on Valencia-Trujillo would be based solely on evidence of events occurring after December 17, 1997. Beyond that, the district court denied Valeneia-Trujillo’s motion. It concluded that any allegation of conduct that occurred before December 17, 1997, relating to the conspiracies charged in Counts I, II, and IV, need not be redacted. The reason was that duration is not an essential element of conspiracy, as it is of a continuing criminal enterprise charge. Finally, the court made clear that its order was not intended to prevent consideration of conduct occurring before December 17,1997 if that conduct was “relevant and otherwise admissible under the Federal Rules of Evidence.” Although the government did not challenge the redaction of predicate acts 1-26, it did file a motion to reconsider the decision that it could use only predicate acts 27-36. The court granted the motion, confirming that the government could offer proof of uncharged acts that occurred after December 17, 1997 to the extent such evidence was otherwise admissible. The order denying Valencia-Trujillo’s rule of specialty motion noted that “the parties should raise evidentiary issues under Rule 404(b), Fed.R.Evid., or any other evidentiary rule, at the appropriate time.” The jury convicted Valeneia-Trujillo of all four counts of the indictment. Using the special verdict form it had been given, the jury found that Valeneia-Trujillo had committed all of the conspiracy crimes charged in Counts I, II, and TV “after December 17, 1997.” As for the CCE charge in Count III, the jury found that Valeneia-Trujillo had committed twenty-two of the twenty-eight predicate acts listed on the verdict form. Six of those twenty-two predicate acts had been charged in the indictment that was sent to Colombia with the extradition request. Valeneia-Trujillo was sentenced to 480 months imprisonment. B. Valeneia-Trujillo contends that the district court violated the rule of specialty in three ways. First, he contends that the court violated it by allowing the indictment to charge three conspiracy counts that began “some time no later than 1988.” He argues that the indictment should have charged only conspiracies beginning on or" }, { "docid": "19802744", "title": "", "text": "rule of specialty motion noted that “the parties should raise evidentiary issues under Rule 404(b), Fed.R.Evid., or any other evidentiary rule, at the appropriate time.” The jury convicted Valeneia-Trujillo of all four counts of the indictment. Using the special verdict form it had been given, the jury found that Valeneia-Trujillo had committed all of the conspiracy crimes charged in Counts I, II, and TV “after December 17, 1997.” As for the CCE charge in Count III, the jury found that Valeneia-Trujillo had committed twenty-two of the twenty-eight predicate acts listed on the verdict form. Six of those twenty-two predicate acts had been charged in the indictment that was sent to Colombia with the extradition request. Valeneia-Trujillo was sentenced to 480 months imprisonment. B. Valeneia-Trujillo contends that the district court violated the rule of specialty in three ways. First, he contends that the court violated it by allowing the indictment to charge three conspiracy counts that began “some time no later than 1988.” He argues that the indictment should have charged only conspiracies beginning on or after December 17, 1997 and that all reference to any conduct before that date should have been redacted. Second, Valencia-Trujillo contends that the court erred by denying him the “minimum safeguard” of subjecting the evidence of events occurring before December 17, 1997 to the balancing tests of Fed.R.Evid. 403 and 404(b). Third, Valeneia-Trujillo contends that the court improperly permitted the jury to consider predicate acts for the Count III CCE charge that were not included in the indictment and therefore were not covered by' the extradition request sent to Colombia. Of the twenty-eight predicate acts appearing on the special verdict form, only eight were in the initial indictment sent to Colombia with the United States’ extradition request. c. We cannot decide the merits of Valencia-Trujillo’s rule of specialty contentions unless he has standing to assert violations of the rule in challenging his conviction. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.2005) (“Standing is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a" }, { "docid": "19802768", "title": "", "text": "(citation and quotation marks omitted). Valencia-Trujillo’s sufficiency contention focuses on the allegations of four predicate acts relating to multi-ton cocaine seizures from two fishing vessels, the “Rebelde” and “Layney D.” He puts forward three arguments. First, Valencia-Trujillo argues that the evidence for the two Rebelde predicate acts was identical to that for the two Layney D predicate acts, yet the jury found that he had not committed those predicate acts as they related to Layney D but had committed them as they related to Rebelde. Even if true, that does not matter. See United States v. Brantley, 68 F.3d 1283, 1288 (1995) (“A defendant convicted by a jury on one count cannot attack the conviction because it was inconsistent with the verdict of acquittal on another count.”); see also United States v. Powell, 469 U.S. 57, 65-66, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984). Any inconsistency in the jury’s fact-findings about the commission of predicate acts for Valencia-Trujillo’s CCE charge does not require that we set aside the jury verdict. In any event, there were at least three other predicate acts that he does not challenge as inconsistent, and only three are required to support the CCE conviction. Second, Valencia-Trujillo points out that the jury had initially checked “not guilty” for the Rebelde predicate acts but then scratched it out and checked “guilty.” The most likely explanations are that the jury changed its mind or the foreman mistakenly checked the wrong box and then corrected it. The change does not prove evidentiary insufficiency. Finally, Valencia-Trujillo points out that he put into evidence handwritten notes identifying the owners of the cocaine aboard both vessels and that he was not one of them. There was, however, other evidence from which the jury could find Valencia-Trujillo responsible for the cocaine aboard those vessels. And, again, there were three other predicate acts anyway. VI. Valencia-Trujillo was not railroaded but was fairly caught and convicted. He enjoyed a wild ride but was overtaken by the Panama Express, which may be his earthly version of “The Hell-Bound Train.” AFFIRMED. . The constitutional amendment is the" }, { "docid": "19802769", "title": "", "text": "were at least three other predicate acts that he does not challenge as inconsistent, and only three are required to support the CCE conviction. Second, Valencia-Trujillo points out that the jury had initially checked “not guilty” for the Rebelde predicate acts but then scratched it out and checked “guilty.” The most likely explanations are that the jury changed its mind or the foreman mistakenly checked the wrong box and then corrected it. The change does not prove evidentiary insufficiency. Finally, Valencia-Trujillo points out that he put into evidence handwritten notes identifying the owners of the cocaine aboard both vessels and that he was not one of them. There was, however, other evidence from which the jury could find Valencia-Trujillo responsible for the cocaine aboard those vessels. And, again, there were three other predicate acts anyway. VI. Valencia-Trujillo was not railroaded but was fairly caught and convicted. He enjoyed a wild ride but was overtaken by the Panama Express, which may be his earthly version of “The Hell-Bound Train.” AFFIRMED. . The constitutional amendment is the most recent in a series of Colombian governmental actions affecting the United States’ ability to obtain extraditions from that country. The United States and Colombia signed an extradition treaty in 1979, see Extradition Treaty with the Republic of Colombia, U.S.-Colom., Sept. 14, 1979, S. Treaty Doc. No. 97-8, which became effective three years later. In 1986, the Colombian Supreme Court declared the law ratifying the treaty invalid. See Judgment No. 41, 14 Jurisprudencia y Doctrina 1064 (1986). Colombia’s president briefly revived extraditions by executive decree, but in 1991 the Colombian legislature amended the Colombian constitution to prohibit extradition entirely. See Gallo-Chamorro I, 48 F.3d at 503 n. 1. The 1997 Constitutional amendment discussed in the text was a response to that prohibition. . . After his motion to enforce the rule of specialty was denied, Valencia-Trujillo filed a series of motions seeking to exclude evidence of events occurring before December 17, 1997. Those included: a motion to reconsider the order adopting the magistrate judge's report and recommendation; a motion to prohibit reliance on uncharged predicate" }, { "docid": "19802742", "title": "", "text": "references to events occurring before December 17, 1997 and to “bar[ ] the government from introducing, for any purpose, any evidence originating before that date.” After hearing argument, the magistrate judge issued a Report and Recommendation which the district court adopted in its entirety despite objections by both parties. Valeneia-Trujillo’s motion was granted in part and denied in part. The district court granted Valencia-Trujillo’s motion to the extent that it involved redacting the first twenty-six listed predicate acts. The court also indicated that it would take three other measures to prevent the jury from improperly considering evidence of events occurring before December 17,1997. First, the jury would get a special instruction that it could not find Valencia-Trujillo guilty of any offense unless it found that the charge had been proved beyond a reasonable doubt by evidence of conduct occurring after December 17, 1997. That instruction would be given at the beginning and the end of trial. Second, the jury would get a special verdict form to ensure that any finding of guilt was consistent with the special instruction. Third, any sentence imposed on Valencia-Trujillo would be based solely on evidence of events occurring after December 17, 1997. Beyond that, the district court denied Valeneia-Trujillo’s motion. It concluded that any allegation of conduct that occurred before December 17, 1997, relating to the conspiracies charged in Counts I, II, and IV, need not be redacted. The reason was that duration is not an essential element of conspiracy, as it is of a continuing criminal enterprise charge. Finally, the court made clear that its order was not intended to prevent consideration of conduct occurring before December 17,1997 if that conduct was “relevant and otherwise admissible under the Federal Rules of Evidence.” Although the government did not challenge the redaction of predicate acts 1-26, it did file a motion to reconsider the decision that it could use only predicate acts 27-36. The court granted the motion, confirming that the government could offer proof of uncharged acts that occurred after December 17, 1997 to the extent such evidence was otherwise admissible. The order denying Valencia-Trujillo’s" }, { "docid": "19802739", "title": "", "text": "of FBI agent Rodrick Huff. Agent Huffs affidavit in turn detailed evidence of events occurring after December 17, 1997 that supported Valencia-Trujillo’s prosecution in the United States. In February 2004 Colombia’s Supreme Court of Justice advised that country’s Ministry of the Interi- or and Justice that Valencia-Trujillo was extraditable under Colombian law for all four counts in the indictment. It stated: [I]n the case of granting the requested extradition, the delivery should be conditioned that Joaquin Mario Valencia-Trujillo will not be judged for actions other than those originating the claim ... [TJaking into account that in [Count III] ... there are “predicate actions” committed prior and “since or around 1997” it is indispensable that the National Government conditions the extradition [so] that he will not be judged for actions committed prior to the effective date of the Legislative Act ... which amended article 35 of the Political Constitution, and which authorized extradition of Colombians by birth. The Ministry of the Interior and Justice then issued Executive Resolution 24 on Colombia’s behalf declaring that Valencia-Trujillo would be extradited for the four counts in the indictment “but just for the actions performed after December 17, 1997, a date since which extradition of Colombian citizens is allowed.” While still in Colombia, Valencia-Trujillo challenged his extradition under that country’s law. He asked that “he not be subject to any accusations, citations, argument, or evidence sought or introduced in reference to acts occurring before December 17, 1997.” More specifically, he asked that the first twenty-six predicate acts listed in the Continuing Criminal Enterprise (CCE) count be removed and not be used to determine either his guilt or sentence because they all occurred before December 17, 1997. Valencia-Trujillo also asked Colombia to consider his objection that FBI and DEA agents had presented uncorroborated, false facts to obtain his extradition. In a second Executive Resolution, this one being No. 37, the Ministry of the Interior and Justice denied Valencia-Trujillo’s requests and “confirmed” his extradition. It “overruled” his request for the removal of all events occurring before December 17, 1997 because granting it “would involve the modification of" }, { "docid": "19802756", "title": "", "text": "Texas, 552 U.S. 491, 128 S.Ct. 1346, 1357 & n. 3, 170 L.Ed.2d 190 (2008) (citations and internal quotations marks omitted). Unless extradition conditions or restrictions are grounded in self-executing provisions of a treaty, they do not have “the force and effect of a legislative enactment” that the defendant has standing to assert in the courts of this country. Because Colombia’s extradition of Valencia-Trujillo to the United States was not based on an extradition treaty between the two countries Valencia-Trujillo lacks standing to assert the rule of specialty. II. Valencia-Trujillo also contends that his CCE conviction should be reversed because it is tainted by a violation of the Grand Jury Clause of the Fifth Amendment. He argues that the Fifth Amendment, as interpreted in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), requires that any substantive criminal offense be included in a grand jury indictment before it can be submitted to a trial jury. According to Valencia-Trujillo, predicate acts of a CCE charge are substantive criminal offenses, which must be proved beyond a reasonable doubt to a trial jury. Most of the predicate acts presented to the trial jury in support of the CCE charge had not been submitted to the grand jury and were not included in the indictment. Forty-three months after the grand jury indictment and four months before trial, twenty-two predicate acts that were not charged by the grand jury were added in an “unfiled” indictment. Valencia-Trujillo argues that the additions violated the Grand Jury Clause of the Fifth Amendment. Valencia-Trujillo’s argument is foreclosed by our decision in United States v. Alvarez-Moreno, 874 F.2d 1402 (11th Cir. 1989). In that case the defendant’s original indictment listed some acts that the government intended to use to prove the continuing series element of the CCE. See id. at 1415-16 (Clark, J, specially concurring). The issue arose when that indictment was redacted to comply with restrictions imposed by the extradition order. Id. at 1407. The redacted indictment, prepared as a formality on the last day of trial, see id. at 1416, alleged only that" }, { "docid": "19802763", "title": "", "text": "v. Emmanuel, 565 F.3d 1324 (11th Cir.2009). Although Valencia-Trujillo argues that he is invoking application of the Fourth Amendment not in Colombia but in the United States as it relates to his prosecution here, the Amendment does not work that way. The Supreme Court has explained that “a violation of the [Fourth] Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.” Verdugo-Urquidez, 494 U.S. at 264, 110 S.Ct. at 1060. Whether evidence obtained as a result of a violation of the Fourth Amendment should be excluded at trial in the United States is a “remedial question separate from the existence vel non of the constitutional violation.” Id. The allegedly improper seizure of Valencia-Trujillo occurred in Colombia. Because there can be no violation of our Fourth Amendment in that country, there can be no entitlement to a Franks hearing to establish that one occurred there. IV. Valencia-Trujillo contends that the district court erred by overruling his objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the government’s peremptory strike of Julio Santos, the only Colombian-American in the sixty-three member venire. The government stated that it struck Santos based on a combination of two factors. First, Santos had family in Colombia who could have been subject to retaliation as a result of his jury service. Second, Santos had indicated on his jury questionnaire that he was “[n]ot sure” how he felt about considering the testimony of criminals who may be granted leniency in return for their testimony. The district court overruled Valeneia-Trujillo’s Batson objection orally, and then filed a written order explaining that ruling. The Supreme Court has prescribed a three-step inquiry applicable to a defendant’s challenge to a peremptory strike. The three steps are: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried" }, { "docid": "19802738", "title": "", "text": "will not apply when the facts took place previous to the promulgation of this norm.” Constitución Política de Colombia tit.l, art. 35 (1997). That “norm” was promulgated on December 17, 1997. See id. Mindful of that provision of the Colombian Constitution, the American Embassy stated in its diplomatic note that “each of the charges includes and is independently supported by overt acts occurring after December 17, 1997.” The Embassy then listed the information it had relating to Valencia-Trujillo’s charged conduct that occurred after December 17, 1997. That information linked Valencia-Trujillo to multi-ton seizures of cocaine from two fishing vessels and to one 300 kilogram cocaine seizure from a cargo container. It also identified him as a leader and supplier of a cocaine-distributing network and as the head of a multi-million dollar money laundering organization in New York. Along with its extradition request the Embassy sent Valencia-Trujillo’s indictment, the arrest warrant, and an affidavit from an Assistant United States Attorney explaining the legal significance of the charges. The AUSA’s affidavit incorporated by reference the 139-page affidavit of FBI agent Rodrick Huff. Agent Huffs affidavit in turn detailed evidence of events occurring after December 17, 1997 that supported Valencia-Trujillo’s prosecution in the United States. In February 2004 Colombia’s Supreme Court of Justice advised that country’s Ministry of the Interi- or and Justice that Valencia-Trujillo was extraditable under Colombian law for all four counts in the indictment. It stated: [I]n the case of granting the requested extradition, the delivery should be conditioned that Joaquin Mario Valencia-Trujillo will not be judged for actions other than those originating the claim ... [TJaking into account that in [Count III] ... there are “predicate actions” committed prior and “since or around 1997” it is indispensable that the National Government conditions the extradition [so] that he will not be judged for actions committed prior to the effective date of the Legislative Act ... which amended article 35 of the Political Constitution, and which authorized extradition of Colombians by birth. The Ministry of the Interior and Justice then issued Executive Resolution 24 on Colombia’s behalf declaring that Valencia-Trujillo would" }, { "docid": "19802767", "title": "", "text": "the government’s case depended on the testimony of witnesses who had been offered leniency, Santos’ ambivalence toward that type of testimony could adversely affect the outcome in the case. We doubt that Santos made out a prima facie case, but we need not dwell on that issue. The district court’s determination that the two proffered reasons for the strike were race-neutral clearly is correct, and its finding that the strike was not motivated by purposeful discrimination is not even close to clearly erroneous. See Wallace v. Morrison, 87 F.3d 1271, 1275 (11th Cir.1996). V. Finally, Valencia-Trujillo contends that the district court erred in denying his renewed motion for judgment of acquittal or for a new trial based on insufficiency of the evidence. We review de novo a denial of a motion for judgment of acquittal based on the sufficiency of the evidence, viewing the evidence “in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government’s favor.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir.2003) (citation and quotation marks omitted). Valencia-Trujillo’s sufficiency contention focuses on the allegations of four predicate acts relating to multi-ton cocaine seizures from two fishing vessels, the “Rebelde” and “Layney D.” He puts forward three arguments. First, Valencia-Trujillo argues that the evidence for the two Rebelde predicate acts was identical to that for the two Layney D predicate acts, yet the jury found that he had not committed those predicate acts as they related to Layney D but had committed them as they related to Rebelde. Even if true, that does not matter. See United States v. Brantley, 68 F.3d 1283, 1288 (1995) (“A defendant convicted by a jury on one count cannot attack the conviction because it was inconsistent with the verdict of acquittal on another count.”); see also United States v. Powell, 469 U.S. 57, 65-66, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984). Any inconsistency in the jury’s fact-findings about the commission of predicate acts for Valencia-Trujillo’s CCE charge does not require that we set aside the jury verdict. In any event, there" }, { "docid": "19802745", "title": "", "text": "after December 17, 1997 and that all reference to any conduct before that date should have been redacted. Second, Valencia-Trujillo contends that the court erred by denying him the “minimum safeguard” of subjecting the evidence of events occurring before December 17, 1997 to the balancing tests of Fed.R.Evid. 403 and 404(b). Third, Valeneia-Trujillo contends that the court improperly permitted the jury to consider predicate acts for the Count III CCE charge that were not included in the indictment and therefore were not covered by' the extradition request sent to Colombia. Of the twenty-eight predicate acts appearing on the special verdict form, only eight were in the initial indictment sent to Colombia with the United States’ extradition request. c. We cannot decide the merits of Valencia-Trujillo’s rule of specialty contentions unless he has standing to assert violations of the rule in challenging his conviction. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.2005) (“Standing is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims.” (citations and internal quotation marks omitted)). The government’s failure to raise the standing issue in the district court does not affect our duty to decide it. See id. (“Because [standing] involves the court’s competency to consider a given type of case, it cannot be waived or otherwise conferred upon the court by the parties. Accordingly, we are obliged to consider questions of standing regardless of whether the parties have raised them.” (citation and internal quotation marks omitted)). Valencia-Trujillo’s theory of standing is based on his assertion that he was extradited under the United States-Colombia treaty of 1979, which expressly provides for the rule of specialty. See Extradition Treaty with the Republic of Colombia, U.S.-Colom., Sept. 14, 1979, S. Treaty Doc. No. 97-8 (“A person extradited under the Treaty shall not be detained, tried, or punished in the territory of the Requesting State, for an offense other than that for which extradition has been granted ... ”). The parties agree that if Valencia-Trujillo was extradited under that treaty, he would have a private right" }, { "docid": "19802757", "title": "", "text": "be proved beyond a reasonable doubt to a trial jury. Most of the predicate acts presented to the trial jury in support of the CCE charge had not been submitted to the grand jury and were not included in the indictment. Forty-three months after the grand jury indictment and four months before trial, twenty-two predicate acts that were not charged by the grand jury were added in an “unfiled” indictment. Valencia-Trujillo argues that the additions violated the Grand Jury Clause of the Fifth Amendment. Valencia-Trujillo’s argument is foreclosed by our decision in United States v. Alvarez-Moreno, 874 F.2d 1402 (11th Cir. 1989). In that case the defendant’s original indictment listed some acts that the government intended to use to prove the continuing series element of the CCE. See id. at 1415-16 (Clark, J, specially concurring). The issue arose when that indictment was redacted to comply with restrictions imposed by the extradition order. Id. at 1407. The redacted indictment, prepared as a formality on the last day of trial, see id. at 1416, alleged only that the defendant had imported cocaine and laundered money. Id. at 1407, 1416. The defendant argued that the redacted indictment was one predicate act short, because a CCE violation requires at least three separate predicate acts. Id. at 1408 (majority opinion). In rejecting the argument we pointed out that CCE predicate acts do not even have to be set out in the indictment. See id. (“The violations need not be charged or even set forth as predicate acts in the indictment.”); id. at 1408-09 (“The law only requires evidence that the defendant committed three substantive offenses to provide the predicate for a section 848 violation, regardless of whether such offenses were charged in counts of the indictment or in separate indictments.”); id. at 1409 (“If the prosecution proves an uncharged offense beyond a reasonable doubt, such offense may constitute one of the three requisite offenses sustaining a CCE charge.” (citations omitted)). Valencia-Trujillo points out that in Alvarez-Moreno the original indictment had set out all of the predicate acts that were proven at trial, so the defendant" }, { "docid": "19802740", "title": "", "text": "be extradited for the four counts in the indictment “but just for the actions performed after December 17, 1997, a date since which extradition of Colombian citizens is allowed.” While still in Colombia, Valencia-Trujillo challenged his extradition under that country’s law. He asked that “he not be subject to any accusations, citations, argument, or evidence sought or introduced in reference to acts occurring before December 17, 1997.” More specifically, he asked that the first twenty-six predicate acts listed in the Continuing Criminal Enterprise (CCE) count be removed and not be used to determine either his guilt or sentence because they all occurred before December 17, 1997. Valencia-Trujillo also asked Colombia to consider his objection that FBI and DEA agents had presented uncorroborated, false facts to obtain his extradition. In a second Executive Resolution, this one being No. 37, the Ministry of the Interior and Justice denied Valencia-Trujillo’s requests and “confirmed” his extradition. It “overruled” his request for the removal of all events occurring before December 17, 1997 because granting it “would involve the modification of a court order issued by a foreign authority, which would entail going beyond the scope of the extradition proceeding and interfering with the sovereignty of the country requesting extradition.” Addressing Valencia-Trujil lo’s argument about the false statements presented in support of the extradition request, the Resolution stated that those were “issues to be presented during the course of the criminal proceedings of that country, to disprove the accusations and the supporting evidence in whatever manner available the competent authorities provide for.” Resolution No. 37 further stated: The requesting country is bound by the response given by the requested country and may try the extradited person only for those charges for which he was requested, and for those acts which took place after December 17, 1997, which are justified according to [the diplomatic note]. Valencia-Trujillo was extradited to the United States, and he initially appeared in district court in March 2004. Before trial Valencia-Trujillo filed “Defendant’s Motion to Enforce Rule of Specialty” asserting that the rule required the district court to redact from the indictment all" }, { "docid": "19802758", "title": "", "text": "the defendant had imported cocaine and laundered money. Id. at 1407, 1416. The defendant argued that the redacted indictment was one predicate act short, because a CCE violation requires at least three separate predicate acts. Id. at 1408 (majority opinion). In rejecting the argument we pointed out that CCE predicate acts do not even have to be set out in the indictment. See id. (“The violations need not be charged or even set forth as predicate acts in the indictment.”); id. at 1408-09 (“The law only requires evidence that the defendant committed three substantive offenses to provide the predicate for a section 848 violation, regardless of whether such offenses were charged in counts of the indictment or in separate indictments.”); id. at 1409 (“If the prosecution proves an uncharged offense beyond a reasonable doubt, such offense may constitute one of the three requisite offenses sustaining a CCE charge.” (citations omitted)). Valencia-Trujillo points out that in Alvarez-Moreno the original indictment had set out all of the predicate acts that were proven at trial, so the defendant had notice of them. That distinction is, however, immaterial. Even if Valencia-Trujillo did not have notice of the twenty-two additional predicate acts at the outset of the prosecution, he did have notice of them four months before trial. The addition of predicate acts did not prevent a meeting of the minds between the grand jury and the trial jury on the charges for which Valencia-Trujillo was convicted. The original indictment contained “including, but not limited to” language, which is broad enough to cover the predicate acts that were later added. See United States v. Moore, 149 F.3d 773, 782 (8th Cir.1998) (“Given [this] broad language ... it cannot be said that [the defendants were] convicted of a CCE charge not made in the indictment” just because the court admitted evidence of additional acts). Not only that, but the trial jury also returned a special verdict form that identified at least three predicate acts supporting the CCE charge that had also appeared in the original indictment. Valencia-Trujillo was not convicted of any crime or found guilty" } ]

[ { "docid": "12605659", "title": "", "text": "is payable to taxpayer. No .matter how many annual payments he may have received, he is still entitled, on demand, to have the principal sum returned to him intact. The question presented for determination :is whether the annual payments received by taxpayer in 1941 u'nder said insurance contracts constituted interest on an invested fund taxable in full under Sec. 22(a), Internal Revenue 'Code, as the Commissioner had ruled, which ruling the Tax Court upheld, or amounts received as an annuity within the meaning of Sec. 22(b) (2), Internal Revenue Code, taxable only to the extent provided in that section, as taxpayer contends. 26 U.S.C.A. § 22(a), (b).(2). Sec. 22(a) broadly defines gross income as including “interest * * * and income derived from any source whatever.” Sec. 22(b) (2) provides: “ * * * Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except' that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per centum of the aggregate premiums or consideration paid for such annuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this chapter or prior income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity. * * *” Whether the payments to taxpayer are labeled “annuity payments” is not determinative of whether they qualify as such under Code Sec. 22(b) (2). We think- that these payments, which did not include any return of taxpayer’s capital, do not so qualify. We hold that such payments were in fact nothing more than interest or earnings upon an invested fund. To hold otherwise would necessitate disregarding not only the plain construction of the section and its legislative history, but also the firmly accepted notion that an annuity has as its basic function the systematic liquidation of the principal. Huebner, Life Insurance, pages 154-155. The legislative history of -Code Sec. 22 (b) (2) discloses it was framed solely with reference to periodic payments" } ]

[ { "docid": "10172289", "title": "", "text": "OPINION. Rice, Judge: The petitioner starts her argument by a concession. She admits that she must include in gross income interest payments from the insurance companies on that portion of the total principal which she could have withdrawn, had she wished to exercise her privilege to make 3 per cent annual withdrawals. She argues that tills portion of the amounts received from the insurance companies is taxable under the rule enunciated in United States v. Heilbroner, 100 F. 2d 379 (C. A. 2, 1938). The theory on which such concession is made is that petitioner constructively received such amounts during each of the years in question. The amounts here in issue, therefore, are the interest payments by the insurancé companies on the balance of the principal which was not yet subject to petitioner’s annual 3 per cent right of withdrawal. Respondent contends that they are earnings within the meaning of the parenthetical clause of section 22 (b) (l), whereas petitioner maintains that they are not taxable income because “paid by reason of the death of the insured.” The petitioner contends that her basic rights under the policies are so like those of a beneficiary of an insurance policy to whom the proceeds are paid on the installment method, that she merits the same tax treatment. She argues that both she and such a beneficiary have the right to annual installments of principal, plus interest on the total principal not yet distributed. It has been established that when either the insured or the beneficiary elects to have the proceeds paid in installments, the entire amount of such installments is “paid by reason of the death of the insured.” Katharine C. Pierce, 2 T. C. 832 (1943), affd. 146 F. 2d 388 (C. A. 2, 1944); Sidney W. Winslow, Jr., 39 B. T. A. 373 (1939), affd. 113 F. 2d 418 (C. A. 1, 1940); Allis v. La Budde, 128 F. 2d 838 (C. A. 7, 1942). Even though these installments may include interest payments, ultimately giving the beneficiary a larger amount than the face value of the policies, this interest factor" }, { "docid": "19264153", "title": "", "text": "Internal Revenue), Austin, Texas, and on or before the date fixed by law for payment of taxes in installments paid income taxes for the year 1946 in the amount of $15,760,821.62. (b). Upon examination and audit of plaintiff’s income tax return for 1946, the Commissioner of Internal Revenue determined a deficiency in income tax for that year in the amount of $701,321.61. This deficiency together with interest as provided by law was paid by plaintiff between April 10 and June 2, 1950. Thereafter, certain claims for refund were allowed to plaintiff by the Commissioner of Internal Revenue and income tax and interest in the amount of $160,920.77 was refunded or credited to plaintiff. 3. (a) Within the time required by law, plaintiff hied its Federal income tax return for the year 1947 with the Collector of Internal Revenue (now District Director of Internal Revenue), Austin, Texas, and on or before the date fixed by law for payment of taxes in installments plaintiff paid income taxes in the amount of $22,960,685.88 shown to be due on its return to the Collector of Internal Revenue. (b) The Commissioner of Internal Revenue upon examination and audit of plaintiff’s income tax return for the year 1947 proposed a deficiency in income tax for that year in the amount of $465,962.39. This deficiency together with interest thereon in the amount of $75,521.17 was assessed in March 1951. This assessment was satisfied by a payment of $510,922.37 to the Collector of Internal Revenue on April 9, 1951, and an abatement of $30,516.59. A second deficiency assessment of $14,078.30 together with interest thereon was satisfied by a credit. Income tax of $10,142.47 with interest thereon was credited or refunded to plaintiff. 4. (a) Within the time required by law plaintiff filed its Federal income tax return for the year 1948 with the Collector of Internal Revenue (now District Director of Internal Revenue), Austin, Texas, and on or before the date fixed by law for payment of taxes in installments plaintiff paid income taxes in the amount of $40,549,089.34 shown to be due on its return to the" }, { "docid": "21349487", "title": "", "text": "annual installments, and directing that the corporation pay $30,000 on said notes on the 1st day of July in the years 1936 and 1937, said amounts to be “set aside out of the income of the corporation without regard to the source” thereof. Renewal notes were issued in accordance with the resolution, and $30,000 was paid thereon during each of the tax years involved. Section 26(c) (2) of the Revenue Act of 1936 provided that corporations should be allowed a credit against the surtax on undistributed profits, to the extent provided by the tax-imposing sections of the Act, of an amount equal to the portion of the earnings and profits of the taxable year required (by a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly dealt with the disposition of earnings and profits of the taxable year) to be paid within the taxable year in discharge of a debt. It is the contention of the appellant that the resolution of its Board of Directors and the promissory notes issued pursuant thereto constituted a written contract as described by the cited section, and that it was entitled to a credit against the tax for the sums paid thereon. We find it unnecessary to decide the doubtful question whether the resolution of the Board of Directors alone, or in conjunction with the promissory notes, may be considered to be a written contract within the contemplation of Section 26(c) (2), supra. Even if the resolution forms a part of the written contract, there is no provision in it or in the notes expressly dealing with the earnings and profits of the taxable years in which the payments were made. Provision is made only for the payment of fixed sums on fixed dates out of the income, without regard to the source of the income. The statute is expressly limited in .application. The credit it allows may be taken only upon payments on debts maturing during the taxable year payable only from profits earned during that taxable year; and the debts must mature during the" }, { "docid": "4467995", "title": "", "text": "refund, claiming that he had overstated his income by including on his return his wife’s community property share of his earnings and capital gains accumulated during the period prior to the property settlement agreement, i. e., during the first half of 1967. The district court agreed and gave judgment for Janus. However, the district court also held that the estimated tax payments for the first six months of 1967 were presumptively made from community property earnings during that period. The court concluded that Janus was accordingly entitled to only one-half of the overpayment for the period prior to the agreement. On appeal, Janus contends that payments made by a taxpayer in accord with a separate declaration of estimated tax must be credited solely to the taxpayer if he files a separate tax return. Accordingly, he argues, he is entitled to a judgment for the full amount by which his estimated tax payments exceeded his actual tax liability. We agree. The statutes and regulations concerning the declaration of estimated taxes and the crediting of estimated tax payments do not allow for a result based upon the source of funds. Section 6015(a) of the Internal Revenue Code, 26 U.S.C. § 6015(a), provides that, subject to certain limitations, “every individual shall make a declaration of his estimated tax for the taxable year.” Section 6315 states that “[pjayment of the estimated income tax, or any installment thereof, shall be considered payment on account of the income taxes imposed by subtitle A for the taxable year.” 26 U.S.C. § 6315. Section 301.6315-1 of the Internal Revenue Regulations provides: The payment of any installment of the estimated income tax (see sections 6015 and 6016) shall be considered payment on account of the income tax for the taxable year for which the estimate is made. The aggregate amount .of the payments of estimated tax should be entered upon the income tax return for such taxable year as payments to be applied against the tax shown on such return. (Emphasis added.) These statutes and the regulation contemplate that the individual will make a declaration of estimated tax and" }, { "docid": "18093434", "title": "", "text": "of the Revenue Act of 1932 provides for taxing annuities, but not until the total amounts received exceed the total amount paid for the annuity. “Your subcommittee is of the opinion that the tax on annuity receipts to the extent that they represent income should not be postponed as permitted by present law. Such receipts are, as a matter of fact, part interest and part return of capital. Therefore, it is recommended that some amount representing the portion of the annuity receipts consisting of interest be made subject to the income tax. In order to facilitate administration, it is recommended that an arbitrary rule be adopted that 3 percent of the amount paid for the annuity shall be deemed to be interest. This rule is applied only to annuity contracts.\" To constitute an “annuity” it is not necessary that the payments be annual. In the taxable year petitioner received “dividends” from Berkshire and Phoenix in the respective amounts of $104.14 and $35.27, over and above the amounts of the guaranteed installments. SEC. 117. CAPITAL GAINS AND LOSSES. * * • * * * * (c) Determination of Period for Which Heed. — For the purpose of subsection (a)— (1) In determining the period for which the taxpayer has held property received on an exchange there shall be included the period for which he held the property exchanged, if under the provisions of section 113, the property received has, for the purpose of determining gain or loss from a sale or exchange, the same basis in whole or in part in his hands as .the property exchanged. Hill, J., dissenting: I agree with the majority that the contracts under which the payments here involved were received by petitioner are not annuity contracts and that the provisions of section 22 (b) (2) for the taxing of annuities do not apply. It is my opinion, however, that such contracts are not insurance or endowment contracts within the meaning of section 22 (b) (2) and that that part of such payments which represents increment to the cash surrender values of the insurance policies is" }, { "docid": "18422262", "title": "", "text": "For the amounts due in 1953 the discounts were $313.14 for Frank Cowden, Sr. and his' wife, and $104.38 for each of their children. The taxpayers reported the amounts received by them from the assignments as long-term capital gains. The Commissioner made a determination that the contractual obligations of Stanolind to make payments in future years represented ordinary income, subject to depletion, to the extent of the fair market value of the obligations at the time they were created. The Commissioner computed the fair market value of the Stanolind obligations, which were not interest bearing, by the deduction of a discount of four per cent, on the deferred payments from the date of the agreements until the respective maturities. Such computation fixed a 1951 equivalent of cash value of $487,647.46 for the bonus payments, paid in 1951 and agreed to be paid thereafter, aggregating $511,192.50. The Commissioner determined that the taxpayers should be taxed in 1951 on $487,647.46, as ordinary income. A majority of the Tax Court was convinced that, under the particular facts of this case, the bonus payments were not only readily but immediately convertible to cash and were the equivalent of cash, and had a fair market value equal to their face value. The Tax Court decided that the entire amounts of the bonus payments, $511,192.50, were taxable in 1951, as ordinary income. Cowden v. Commissioner of Internal Revenue, 32 T.C. 853. Two judges of the Tax Court dissented. The Tax Court stated, as a general proposition, “that executory contracts to make future payments in money do not have a fair market value.” The particular facts by which the Tax Court distinguishes this case from the authorities by which the general proposition is established are, as stated in the opinion of the majority “ * * * that the bonus payors were perfectly willing and able at the time of execution of the leases and bonus agreements to pay such bonus in an immediate lump sum payment; to pay the bonus immediately in a lump sum at all times thereafter until the due dates under the agreements;" }, { "docid": "12605663", "title": "", "text": "capital and interest and has no applicability to those payments which represent only interest or earnings on an invested fund. The section permits the annual exclusion from gross income of such part of “annuity” payments as exceeds 3% of the consideration “until the aggregate amount excluded * * * equals the aggregate premiums or consideration paid for su'ch annuity.” Periodic payments which do not include a return of capital do not qualify as annuity payments within the meaning of Sec. 22(b) (2). Taxpayer relies on Commissioner of Internal Revenue v. Meyer, 6 Cir., 139 F.2d 256, and Bodine v. Commissioner, 3 Cir., 103 F.2d 982. We think the Meyer case is distinguishable although the opinion does contain language which gives some support to the taxpayer’s contention. In that case two contracts of insurance had been purchased simultaneously from the same company. The court held they were separate in fact as well as in form. The court pointed out that the sum paid to the insured was far in excess of the return ordinarily earned on the investments of insurance companies, and said, 139 F.2d page 259: “ * * * some part of the sums received by respondent was a return to him of his original investment. This characteristic distinguishes an annuity contract from an interest contract.” Also: “ * * * In the case of interest in its usual acceptation, there is always a principal which remains intact * * In the case at bar the principal sum remained intact, and the sums received by the taxpayer represented a percentage return less than is ordinarily earned on investments of insurance companies. The Bodine case was decided before the 1934 amendment which made significant changes in Sec. 22(b) (2), by placing amounts received under “life insurance” and “annuity” contracts in different categories, and by eliminating the prior exemption of interest received under the designation of annuity payments. The 1932 act made no distinction between a return of capital and interest or between life insurance and annuity contracts, but merely taxed the excess of the total amounts received over the total" }, { "docid": "21349486", "title": "", "text": "HOLMES, Circuit Judge. The question .presented for decision is whether appellant was entitled, in the computation of its surtax liability on its undistributed profits for the years 1936 and 1937, to credits as provided by Section 26 of the Revenue Act of 1936, 26 U.S.C.A. Int. Rev. Acts, page 835, for payments made upon certain promissory notes outstanding against it that became due in those years. The credits were not claimed in the taxpayer’s returns for those years, and this suit was brought to recover the excess of the taxes alleged to have been erroneously paid by reason thereof. Judgment was entered for the defendant. The taxpayer was a personal holding company incorporated in 1932. Its assets consisted entirely of corporate stocks transferred to it by C. C. Clark and his wife, in return for which the corporation, issued its capital stock and non-interest-bearing demand notes. On October 1, 1934, when large balances were owing on the notes, the directors of the corporation passed a resolution authorizing the issuance of, interest-bearing renewal notes payable in annual installments, and directing that the corporation pay $30,000 on said notes on the 1st day of July in the years 1936 and 1937, said amounts to be “set aside out of the income of the corporation without regard to the source” thereof. Renewal notes were issued in accordance with the resolution, and $30,000 was paid thereon during each of the tax years involved. Section 26(c) (2) of the Revenue Act of 1936 provided that corporations should be allowed a credit against the surtax on undistributed profits, to the extent provided by the tax-imposing sections of the Act, of an amount equal to the portion of the earnings and profits of the taxable year required (by a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly dealt with the disposition of earnings and profits of the taxable year) to be paid within the taxable year in discharge of a debt. It is the contention of the appellant that the resolution of its Board of Directors and the" }, { "docid": "16003215", "title": "", "text": "the Debtor believes that income payments will commence when she is 66 (July 6, 2012), and the Trustee asserts that the Debtor has the right to set a date when payments commence. The Debtor may choose from several payment options, including income for life, with payments ending on her death; income for life with payments guaranteed for a fixed period so that they continue even if she dies before the end of the period; fixed amount income payments over a selected five to 20 year period; or equal periodic income payments for a predetermined number of years only. Thus, the Debtor may elect to receive her investment plus its earnings or payments based on her estimated life span. The Debtor is allowed to make one withdrawal of up to ten percent of the annuity value from the account each year without penalty for the first six years. After six years, there are no withdrawal charges. The Debtor can cancel the contract and withdraw all of the funds at any time, although early withdrawal charges apply if she does so within the first six years. Withdrawals are subject to federal and state income taxes. The withdrawals are treated as interest until earnings are exhausted and thereafter as a non-taxable return of premium. In addition, any taxable portion of withdrawals taken before the Debtor reaches the age of 59)6 is subject to a ten percent federal tax penalty. 26 U.S.C. §§ 4974, 72(t). The annuity has a current value of approximately $79,850. If it were terminated now, a surrender charge would be assessed of about $4,850, so the current cash value is approximately $75,000, the amount she paid. The parties agree that the Debtor has a Roth IRA in the amount of $6,956 and that $5,379 of it is clearly exempt under the “wild card” exemption of O.C.G.A. § 44-13-100(a)(6). The dispute is over whether the $ 1,577 balance of the Roth IRA is exempt under O.C.G.A. § 44-13-100(a)(2)(E). II. The Assets as Property of the Estate Section 541(c)(2) excludes from property of the estate a debtor’s beneficial interest in a trust" }, { "docid": "19264154", "title": "", "text": "its return to the Collector of Internal Revenue. (b) The Commissioner of Internal Revenue upon examination and audit of plaintiff’s income tax return for the year 1947 proposed a deficiency in income tax for that year in the amount of $465,962.39. This deficiency together with interest thereon in the amount of $75,521.17 was assessed in March 1951. This assessment was satisfied by a payment of $510,922.37 to the Collector of Internal Revenue on April 9, 1951, and an abatement of $30,516.59. A second deficiency assessment of $14,078.30 together with interest thereon was satisfied by a credit. Income tax of $10,142.47 with interest thereon was credited or refunded to plaintiff. 4. (a) Within the time required by law plaintiff filed its Federal income tax return for the year 1948 with the Collector of Internal Revenue (now District Director of Internal Revenue), Austin, Texas, and on or before the date fixed by law for payment of taxes in installments plaintiff paid income taxes in the amount of $40,549,089.34 shown to be due on its return to the Collector of Internal Revenue. (b) The Commissioner of Internal Revenue upon examination and audit of plaintiff’s return proposed a deficiency in income tax for the year 1948 in the amount of $975,287.53. This deficiency together with interest thereon as provided by law was paid by plaintiff to the Collector of Internal Revenue on or about November 26, 1951. Thereafter, income tax in the amount of $10,405 with interest thereon was refunded to plaintiff. 5. (a) Within the time required by law plaintiff filed its Federal income tax return for the year 1949 with the Collector of Internal Revenue (now District Director of Internal Revenue), Austin, Texas, and on or before the date fixed by law for payment of taxes in installments plaintiff paid income taxes in the amount of $16,873,530.91 shown to be due on its return to the Collector of Internal Revenue. (b) The Commissioner of Internal Revenue upon examination and audit of plaintiff’s return proposed a deficiency in income tax for the year 1949 in the amount of $849,340.98. That deficiency together with" }, { "docid": "3520015", "title": "", "text": "649,612.87 Normal tax and surtax 2,738,176.26 Total $3,387,789.13' (Stip. Facts, par. 23) 21. On October 28, 1957, said Appellate Division formally notified taxpayer with respect to said deficiency of $443,-421.36, and on November 15, 1957, the District Director of Internal Revenue, Toledo, Ohio, demanded payment of said deficiency together with interest thereon in the sum of $149,931.08. Thereafter, on November 21, 1957, taxpayer under protest paid to the said District Director the deficiency of $443,421.36, together with interest thereon of $149,931.08, a total of $593,352.44. (Stip. Facts, par. 24) 22. The federal income and excess profits tax returns filed by taxpayer for its taxable years 1951 and 1952, in which its tax liability was computed after according borrowed capital treatment to its certificates of deposit, were approved by the examining agent and by the District Director of Internal Revenue without any exception, the Appellate Division at Cleveland, Ohio, first having taken exception to said returns by disallowing borrowed capital treatment to said funds. (Stip. Facts, par. 25) 23. The determination by the Appellate Division of the Internal Revenue Service above referred to was made upon the premise that the taxpayer in the computation of its 1951 and 1952 excess profits credits based on income (the year 1952 is involved to the extent of the carryback from that year to 1951 of unused excess profits credit), was not entitled to consider and treat as “borrowed capital”, within the meaning of Section 439 of the Excess Profits Tax Act of 1950, said certificates of deposit issued by the taxpayer in accordance with its Constitution and By-Laws. (Stip. Facts, par. 26) 24. Taxpayer learned for the first time in the month of January 1957 of the determination of the Appellate Division of the Internal Revenue Service at Cleveland, Ohio, to deny borrowed capital treatment, for excess profits tax purposes, to taxpayer’s certificates of deposit in the years 1951 and 1952. This determination of the Appellate Division affected not only taxpayer’s taxable year 1951, but also its taxable years 1952 and 1953, involving an additional excess profits tax liability for said three years, including" }, { "docid": "11961545", "title": "", "text": "amount of the bonds outstanding during the year 1936. The taxpayer has appealed in No. 11,921, from the order disallowing the claimed credit for $31,526.-66, being 20 percent of $157,633.31 which was the alleged net earnings of the year 1936 in excess of $320,000. No. 11913. The Revenue Act of 1936 imposes a surtax upon the undistributed net income of corporations. The amount of such income is arrived at by a statutory formula which defines “undistributed net income” as the corporate net income less the amount of dividends actually paid, and less the amount of a credit provided for by Section 26(c). The present cases involve the taxpayer’s claims to such credits under Section 26(c) (2) which provides as follows : “In the case of a corporation the following credits shall be allowed to the extent provided in the various sections imposing tax— $ % íjí i|« $ “(c) Contracts Restricting Payment of Dividends. H* * * * * * “(2) Disposition of profits of taxable year. An amount equal to the portion of the earnings and profits of the taxable year which is required (by a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the disposition of earnings and profits of the taxable year) to be paid within the taxable year in discharge of a debt, or to be irrevocably set aside within the taxable year for the discharge of a debt; to the extent that such amount has been so paid or set aside.” The taxpayer’s bonds in the aggregate principal amount of $690,500 were outstanding at the beginning of the taxable year 1936. They were all retired during that year. The taxpayer urges that in view of the provision of the trust agreement requiring it to pay to the trustee on June 1st of each year a sum equal to 2 percent of the largest amount of bonds at any time .outstanding it is entitled to a credit of $13,810 under Section 26(c) (2) of the Revenue Act of 1936. That amount represents 2 percent of" }, { "docid": "16265004", "title": "", "text": "the death of the insured and interest payments on such amounts and other than amounts received as annuities) under a life insurance or endowment contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per centum of the aggregate premiums or consideration paid for such annuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this chapter or prior income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity. * * *” [26 U.S.C. (1952 ed.) § 22.) Of the $117,330.14 paid by the Penn Mutual Life Insurance Company upon surrender of the policy, $521.38 represented accumulated dividends and $329.02 represented interest on those dividends. Whether the dividends were paid out of earnings and therefore taxable when received, G. C. M. 10798, XI-2 Cum. Bull. 58, Florence Mae Shelley, 10 T. C. 44, or were merely rebates on premiums, and therefore not taxable under Treasury Regulations 111, Sec. 29.22 (a)-12 does not affect the result of this case. Thus if they are true dividends they are taxable for the year received (1951). But if they are rebates on premiums they are treated as a return of capital and thereby serve to reduce the taxpayer’s cost basis. Hence, even though there is a reduction of the cost basis of the annuity, the taxpayer’s gain is exactly the same as if the dividends were taxable. Of the $117,330.14 cash surrender value of the policy, the sum of $521.38 represented accumulated dividends. Interest on those dividends was represented in the amount of $329.02." }, { "docid": "18093431", "title": "", "text": "in gross income and shall be exempt from taxation under this title ; ******* (2) Annuities, etc. — Amounts received (other than .amounts paid by reason of the death of the insured and interest payments on such amounts and other than amounts received as annuities) under a life insurance or endowment contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per centum of the aggregate premiums or consideration paid for such annuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this title or prior income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity. * * * Art. 22 ib) (2)-2. [I’ogulations 94.1 Annuities.— Vmounts received as an annuity under an annuity or endowment contract include amounts received in periodical installments, whether annually, semiannually, quarterly, monthly, or otherwise, and whether for a fixed period, such as a term of years, or for an indefinite period, such as for life, or for life and a guaranteed fixed period, and which installments are payable or may be payable over a period longer than one year. * * * See Report No. 704, p. 21, of the Ways and Means Committee, and Report No. 558, p. 23, of the Finance Committee, accompanying the 1934 bill to provide revenue. In Report No. 704, p. 21, the following appears: “Section 22 (b) (2). Annuities, etc.: The present law does not tax annuities arising under contracts until the annuitant lias received, an aggregate amount of payments equal to the total amount paid for the annuity. Payments to annuitants are, in fact, based upon mortality tables which" }, { "docid": "16264998", "title": "", "text": "proceeds received from the insurance company and that his special account had been credited with the net sum of $240.77. This amount was reported by Kaichen in his tax return as income received in 1951. 11. When he purchased the annuity policy from Elsa Wineman, Kaichen was acting in his individual capacity and not as the agent of any company or person. 12. On January 4, 1951, Andrew Wineman was aware of the fact that Kaichen was making a profit of $240.77 upon the transaction and raised an objection on that account. However, he waived his objection upon assurance from the vice president of the bank that Kaichen was entitled to earn a profit for the part he performed in the disposition of the policy. 13. After the initial payment of $10,000 on the annuity contract on the date of purchase, January 6,1933, additional deposits in variable amounts were made by Elsa Wineman. The last payment was made March 4, 1949, at which time the total payments aggregated $81,000. At the time Elsa Wineman transferred the annuity contract to Howard A. Kaichen, her cost basis of the said contract was $81,000. 14. The amounts set forth in tabular form in section 2, “table oe amounts of monthly life income payments purchased by deposits”, and section 5, “death benefits and LOAN OR CASH VALUES PRIOR TO COMMENCEMENT OF LIFE INCOME payments”, of the annuity contract indicate that amounts deposited under the contract accumulate at 3y2 percent interest compounded annually during the life of the policy. 15. Andrew Wineman and his wife, Elsa, filed a joint income tax return for the calendar year 1951 and paid the tax reported therein in the amount of $181,443.33. In the return, the sum of $36,000, representing the difference between the cost of the policy and the $117,000 received from Howard A. Kaichen for the transfer of the policy, was reported as capital gain. Subsequently, the Commissioner of Internal Revenue made a final determination that the taxpayers were liable for additional income taxes for 1951 in tbe amount of $23,13^.23 plus interest, wbicb was paid on" }, { "docid": "23289443", "title": "", "text": "TUTTLE, Chief Judge. This case is before us on cross-appeals of taxpayers Sidney and Rose Lefkowitz and the District Director of Internal Revenue to the judgment of the trial court in taxpayers’ refund suit. At issue are certain penalties assessed against taxpayers under the Internal Revenue Code of 1939, for civil fraud, § 293(b), for delinquent failure to file returns, § 291(a), for substantial underestimation of estimated taxes, § 294(d) (2), and for the interest thereon, covering the taxable years 1951-1953. On March 14, 1958, taxpayers filed skeleton income tax returns for the years 1951,1952, and 1953 showing only net income and tax. The taxpayers then filed original tax returns for the years in question showing details of income, deductions, credits, and exemptions April 29, 1958. The Government on December 4, 1959, made a further assessment for taxes due in the year 1951. These amounts plus delinquency penalties and interest were paid by taxpayers and no claim for refund of them was made. However, additional penalties assessed by the District Director and paid by taxpayers are the subject of this refund suit. These penalties include $23,970.33 for fraud for the three years, $654.23 for underestimation in 1953, and additional delinquency penalties of $2,491.25 assessed on the ground that the delinquency penalty should be computed without regard to the estimated tax payments made by taxpayer prior to the due dates of his tax returns for the taxable years in issue. The district court held that all of the penalties were properly assessed and collected, except for the civil fraud penalties which should have been computed with regard to a credit given for the estimated tax payments made by taxpayers before the due date of the return. The major issue raised on this appeal is whether the lower court correctly held that the criminal conviction of Sidney Lefkowitz for felonious evasion of income taxes in the years in question collaterally estopped taxpayers from seeking a refund of civil fraud penalties assessed for the same taxable years. Taxpayers complain first that the felonies for which the husband was convicted occurred before the wife" }, { "docid": "9835226", "title": "", "text": "* . * * * Section 1 — Participation in Surplus— Dividends The proportion of divisible surplus accruing upon this Policy shall be ascertained annually. On each anniversary such surplus as shall have been apportioned by the Company to this Policy shall at the option of the Insured be either (a) Paid in cash; or (b) Applied to purchase a Participating Paid-up Addition to the sum insured; or (c) Left to accumulate at such rate of interest as the Company may declare on funds so held, but at a rate never less than three per cent compounded and credited annually, and withdrawable in cash on any anniversary or payable at the maturity of the Policy to the person entitled to its proceeds. * * * * *_» Section 117(a) of the Revenue Act of 1934,. 48 Stats. 680, 714, 26 U.S.O.A. Int.Rev.Acts, page 707. “Sec. £§] 22. Gross Income * * * * * “(b) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt from taxation under this title: “(1) Life insurance. Amounts received under a life insurance contract paid by reason of the death of the insured, whether in a single sum or in installments (but if such amounts are held by the insurer under an agreement to pay interest thereon, the interest payments shall be included in gross income); “(2) Annuities, etc. Amounts received (other than amounts paid by reason of the death of the insured and interest payments on such amounts) under a life insurance, endowment, or annuity contract, but if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income. In the case of a transfer for a valuable consideration, by assignment or otherwise, of a life insurance, endowment, or annuity contract, or any interest therein, only the actual value of such consideration and the amount of the premiums and other sums subsequently paid by the transferee shall be" }, { "docid": "8003899", "title": "", "text": "date was March 15, 1945, since ultimately it recovered all of its excess profits taxes for 1944. The defendant contends that this date was December 17, 1945, the date of the last instalment, because the right to the $1,601,218.31 overpayment resulting from the carry-back did not arise until 1946. We agree that the date of the payment of that installment which first exceeded the correct amount of tax due was December 17, 1945. The plaintiff argues that because it recovered all of its excess profits taxes for 1944 that the total tax due on March 15, 1945, was zero. Here lies the plaintiff’s insuperable barrier. The total tax due on March 15,1945, was not zero. The annual tax concept expounded in Burnet v. Sanford, 282 U. S. 359, and in the many cases following that decision, requires that Federal income taxes be determined on an amiual basis under the facts and circumstances in existence in the year in question. This concept and its rationale are equally applicable to excess profits taxes. The $1,601,218.31 carry-back did not arise from the taxable year 1944, but rather from the taxable year 1946. This $1,601,218.31 was due in 1945, and was not and could not have been abated until the taxable year 1946, the taxable year giving rise to the carry-back. It did not become an overpayment until 1946 and we see no reason why it should be treated as an overpayment before that date. This being so, the date of the payment of that installment which first exceeded the correct amount of excess profits tax due for 1944 was December 17, 1945. Therefore, interest started to run on the $427,013.42 on December 17,1945. This brings us to the second question of when the interest terminated. The plaintiff alleged four claims for relief in its petition. The first is to recover interest on $97,003.48, which is a portion of the $427,013.42 overpayment that was credited against a 1946 deficiency assessed on January 18, 1951. The Commissioner of Internal Revenue allowed interest on this sum to 30 days after the filing of the waiver of" }, { "docid": "4817684", "title": "", "text": "made had the effect of limiting the percentage depletion which American might claim to 15% of 53%% of the gross income. * * * The payment in question was not an expense of carrying on a business for the year 1950 since petitioner did not become obligated to pay American the amount until 1951. Fifth Avenue Coach Lines, Inc., 81 T.C. 1080 (1959). The payment in 1951 was a payment in consideration of American’s continuing under the contract throughout its life and was, therefore, a capital expenditure. However, the petitioner has suggested no basis for the ratable recovery of such a capital expenditure, and, insofar as we have been able to determine from the evidence before us, the agreement itself was without any fixed and ascertainable life but was to remain in effect for an indefinite period so that there is in fact no basis upon which the amount could be amortized. It may be that petitioner can look only to its allowance for percentage depletion for recovery of this amount. However, this is not a question we need decide. Issue 3. Petitioner contends that it is a producer of a mineral within the meaning of section 453(a) (1) of the Excess Profits Tax Act of 1950 and is, therefore, entitled to an exempt excess output credit. Since petitioner did not in fact take such a deduction on its returns for the years 1950 and 1951, the credit is the basis of the alleged overpayment for those years. Section 433(a)(1) (I) of the Excess Profits Tax Act of 1950 provides, in part, as follows: SEC. 433. EXCESS PROFITS NET INCOME. (a) Taxable Yeabs Ending After June 30, 1950. — The excess profits net income ior any taxable year ending after June 30, 1950, shall he the normal-tax net income, as defined in section 13(a)(2), for such year increased or decreased by the following adjustments: (1) Adjustments.— (I) Nontaxable Income of Certain Industries With Depletable Resources. — In the case of a producer of minerals, or a producer of logs or lumber from a timber block, or a lessor of mineral" }, { "docid": "11172346", "title": "", "text": "plaintiff contends that this date was March 15, 1945, since ultimately it recovered all of its excess profits taxes for 1944. The defendant contends that this date was December 17, 1945, the date of the last installment, because the right to the $1,601,218.31 overpayment resulting from the carry-back did not arise until 1946. We agree that the date of the payment of that installment which first exceeded the correct amount of tax due was December 17, 1945. The plaintiff argues that because it recovered all of its excess profits taxes for 1944 that the total due on March 15, 1945, was zero. Here lies the plaintiff’s insuperable barrier. The total tax due on March 15, 1945, was not zero. The annual tax concept expounded in Burnet v. Sanford, 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383, and in the many cases following that decision, requires that Federal income taxes be determined on an annual basis under the facts and circumstances in existence in the year in question. This concept and its rationale are equally applicable to excess profits taxes. The $1,601,218.31 carry-back did not arise from the taxable year 1944, but rather from the taxable year 1946. This $1,601,218.31 was due in 1945, and was not and could not have been abated until the taxable year 1946, the taxable year giving rise to the carry-back. It did not become an overpayment until 1946 and we see no reason why it should be treated as an overpayment before that date. This being so, the date of the payment of that installment which first exceeded the correct amount of excess profits tax due for 1944 was December 17, 1945. Therefore, interest started to run on the $427,013.42 on December 17, 1945. This brings us to the second question of when the interest terminated. The plaintiff alleged four claims for relief in its petition. The first is to recover interest on $97,003.48, which is a portion of the $427,013.42 overpayment that was credited against a 1946 deficiency assessed on January 18, 1951. The Commissioner of Internal Revenue allowed interest on this sum" } ]

[ { "docid": "2379496", "title": "", "text": "than to usurp that which is not given. * * * ” Upon the authority of the eases cited and others which have been examined, I am impelled to hold that the District Court has jurisdiction of this case, and that it is not an action against the state of New Hampshire within the meaning of the Eleventh Amendment of the Federal Constitution. The next question involved is whether or not I must summon a statutory court of three judges. ' Section 266 of the Judicial Code (28 USCA § 380) appears to he limited to interlocutory injunctions! suspending or restraining the enforcement, operation, or execution of a state statute upon the ground of its uneonstitutionality. In Ex parte Williams, Tax Commissioner, 277 U. S. 267, 48 S. Ct. 523, 525, 72 L. Ed. 877, Mr. Justice Brandéis says: “A case does not fall within section 266, unless a statute or an order of an administrative board or commission is challenged as contrary to the Federal Constitution.” See, also, Oklahoma Gas Co. v. Russell, 261 U. S. 290, 43 S. Ct. 353, 67 L. Ed. 659; Ex parte Buder, 271 U. S. 461, 46 S. Ct. 557, 70 L. Ed. 1036. In order to bring the case within section 266 of the Judicial Code (28 USCA § 380), two things must concur. First, a preliminary injunction must be sought and insisted on (Smith v. Wilson, 273 U. S. 388, 47 S. Ct. 385, 71 L. Ed. 699); and, second, the injunctive relief must be sought upon the ground of the unconstitutionality of a state statute or an order of an administrative board or commission. In the instant ease the constitutionality of section 10, e. 284, of the Public Laws of New Hampshire, is not questioned. The ease does not arise upon any order of an administrative hoard or commission created by statute. The suit rests upon the charge of abuse of power by the defendants. Therefore I hold that it does not require the formation of a statutory court of three judges to hear and determine the application for a" } ]

[ { "docid": "22809457", "title": "", "text": "case the attack is aimed at an allegedly erroneous administrative action. Until the complainant in the district court attacks the constitutionality of the statute, the case does not require the convening of a three-judge court, any more than if the complaint did not seek an interlocutory injunction. Where by an omission to attack the constitutionality of a state statute, its validity is admitted for the purposes of the bill, a determination by the trial court that the assessment accords with the statute would result in the refusal of the injunction and the dismissal of the bill. Jurisdiction, properly assumed, may be lost by the special court, when it appears that a prerequisite such as need for relief against state officers is lacking. Even where the statute is attacked as unconstitutional, § 266 is inapplicable unless the action complained of is directly attributable to the statute. There is no indication that Congress sought by § 266 to have every attack on the constitutionality of a state statute determined by a three-judge court. It sought such a bench only to avoid precipitate determinations on constitutionality on motions for interlocutory injunctions. As the foregoing ground adequately disposes of the petition for mandamus, we do not discuss the other reasons for refusal urged by the Bank. The motion to file the petition for mandamus is Denied. Ex parte Williams, 277 U. S. 267, 269; Stratton v. St. Louis Southwestern Ry. Co., 282 U. S. 10, 16. Revised Code of Arizona, 1928, §§ 3069-71. Id., t — 3110 Id., J — 311sx, Id., — 307- 49 Stat. 1185. Pittman v. Home Owners’ Corp., 308 U. S. 21. R. S. § 5219; Owensboro National Bank v. Owensboro, 173 U. S. 664, 668. Art. VI, cl. 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land . . .” 271 U. S. 461, 465-66. 258 U. S. 50, 52. Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 407. See D. A. Beard Truck Line Co. v. Smith," }, { "docid": "3215631", "title": "", "text": "under the laws of that state (it was not alleged that any tax had been paid on this particular property), and that to impose the asserted tax would amount to double taxation; that the tax amounts to more than $100,000; that plaintiff is unable to pay it; that its assessment and extension would constitute a lien upon all of plaintiff’s property causing purchasers to decline to pay for oil and gas; and that a multiplicity of suits would be necessary to remove the lien. Diversity of citizenship and double taxation, said to be in contravention of the Constitution of the United States, were relied upon to confer jurisdiction upon the court. A special court of three judges was sought, convened in accordance with section 266 of the Judicial Code (28 USCA § 380). The trial judge declined to convene such a court, and dismissed the bill. A trial' judge is authorized to determine in the first instance whether a case is one requiring disposition by a special court convened in accordance with the statute, and he is not required to call two additional judges to his assistance unless the ease is of that nature. Ex parte Williams, 277 U. S. 267, 48 S. Ct. 523, 72 L. Ed. 877; Independent Gin & Warehouse Co. v. Dunwoody (D. C.) 30 F.(2d) 306; Ross v. Goodwin (D. C.) 40 F.(2d) 532; Green v. Hart (D. C.) 41 F.(2d) 854; United States B. & L. Ass’n v. McClelland (D. C.) 6 F. Supp. 299. His decision upon the question is subject to review. The motion for a special court was improvidently made. The statute provides textually that a court convened under its terms shall be necessary only when it is sought to enjoin a state official or members of a state commission or board from enforcing a state statute or from executing an order made by an administrative board or commission pursuant to such a statute. It does not apply to a suit having for its purpose the restraint of county officers from imposing and collecting a local tax. Ex parte Williams, supra;" }, { "docid": "1583246", "title": "", "text": "PARKER, Circuit Judge. This suit was instituted by the Henrietta Mills Company, a North Carolina corporation, against Rutherford county, North Carolina, and W, C. Hardin, the sheriff of that county, to enjoin the collection of county taxes levied upon what was alleged to be an excessive and unfair valuation of its property, made in violation of its rights under the Fourteenth Amendment to the Constitution. Complainant asked that a court of three judges be convened, pursuant to section 266 of the Judicial Code (28 USCA § 380), to pass upon its application for an interlocutory injunction. Such a court has been convened, and the first question presented is whether the case falls within the provisions of that section. If it does not, the statutory court has no jurisdiction, and the two judges called in must retire from the case and allow the resident judge alone to determine the questions involved; for, if the ease is not one within the section, he alone has jurisdiction. Connor v. Board of Commissioners of Logan County, Ohio (D. C.) 12 F.(2d) 789; Connecting Gas Co. v. Imes (D. C.) 11 F.(2d) 191. The pertinent portion of section 266 of the Judicial Code, as amended, is as follows: “No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state, shall be issued or granted by any justice of the Supreme Court, or by any District Court of the United States, or by any judge thereof, or by any Circuit Judge acting as District Judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a Circuit or District Judge, and shall be heard and determined by three judges, of whom at least one shall" }, { "docid": "22831080", "title": "", "text": "do is to assume in its own way its responsibilities for determining which drivers should be entrusted to use its highways rather than to delegate that power to a private judgment creditor whose debtor has been discharged of his debt by federal law. For the reasons stated, I must dissent. Pursuant to 28 U. S. C. § 2281, providing for a three-judge court where an injunction is sought against the enforcement of a state statute upon the ground of its alleged unconstitutionality. Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U. S. 386; Gully v. Interstate Gas Co., 292 U. S. 16. Direct appeal from a three-judge court is governed by 28 U. S. C. § 1253. See the cases collected in Hart and Wechsler, The Federal Courts and the Federal System, 843 et seq. See also Ann., Three-Judge Court, 4 L. Ed. 2d 1931 et seq. Query v. United States, 316 U. S. 486; Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10; Ex parte Northern Pac. R. Co., 280 U. S. 142. Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U. S. 73 (by implication); Case v. Bowles, 327 U. S. 92; Ex parte Buder, 271 U. S. 461; Lemke v. Farmers Grain Co., 258 U. S. 50. The lower federal courts have also been unanimous in so holding. E. g., Bell v. Waterfront Commission, 279 F. 2d 853; Penagaricano v. Allen Corp., 267 F. 2d 550; Cloverleaf Butter Co. v. Patterson, 116 F. 2d 227, rev’d on other grounds, 315 U. S. 148; Pennsylvania Greyhound Lines, Inc., v. Board of Public Utility Comm’rs, 107 F. Supp. 521. 327 U. S., at 97. The sole determination for convening a three-judge court is whether the state statute is being attacked on the grounds of its unconstitutionality. 28 U. S. C. § 2281. The statute makes no distinction based on the absence of preliminary questions of interpretation. Moreover, this Court has, in the past, attempted to construe this statute rigidly because of our reluctance to enlarge our own mandatory duties of review and because of" }, { "docid": "2253995", "title": "", "text": "or order is made, to scrvMnize the bill of complaint to ascertain whether a substantial federal question is presented, as otherwise the provision for the convening of a court of three judges is not applicable. Ex parte Buder, 271 U.S. 461, 467, 46 5. Ct. 557, 559, 70 L.Ed. 1036; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. We think that a similar rule governs proceedings under Section 3 of the Act of August 24, 1937, as to the participation of three judges in passing upon applications for injunctions restraining the enforcement of federal statutes upon the ground of constitutional invalidity.” At pages 254-255 of 304 U.S., at page 866 of 58 S.Ct. (Emphasis supplied.) In the cases at bar the district judge issued temporary restraining orders pending hearing on the applications for preliminary injunctions restraining discharge of appellants until final determination of their requests for a permanent restraining order and pending a hearing on the application to convene a three-judge court. After such a hearing the lower court found and determined that no substantial constitutional issue was presented in the complaints of appellants, dissolved the temporary restraining orders and granted summary judgments, dismissing both actions. We regard this action as proper under the circumstances of these cases particularly in view of the holdings in the cases cited above. In Schermerhon, Inc., v. Holloman, 10 Cir., 1934, 74 F.2d 265 the plaintiff demanded the convening of a three-judge court. This demand was denied by the trial judge who dismissed the action. The Tenth Circuit Court said, “A trial judge is authorized to determine in the first instance whether a case is one requiring disposition by a special court convened in accordance with the statute, and he is not required to call two additional judges to his assistance unless the case is of that nature. [Cases cited.] His decision upon the question is subject to review.\" At page 266 of 74 F.2d. (Emphasis supplied.) We hold that this Court does have jurisdiction to entertain and dispose of this appeal. On the merits, appellants assert that the “ultimate" }, { "docid": "6323087", "title": "", "text": "literal language of this statute requires the convention of a three judge court only when the defendants are state officers. It applies only when plaintiff seeks an injunction “restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such [s]tate”. The Supreme Court has held that the language of this statute is to be literally followed. A three judge court is required only when state officers are defendants; a three judge court is not required where an action is brought against local officers who are enforcing a local ordinance. A decision directly in point is Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928). In that case, an Arizona statute provided that municipalities could finance improvements by issuing bonds to be paid off' by taxing owners of property abutting the improvements. The City of Phoenix, pursuant to the statute, assessed plaintiff’s property to pay for certain improvements. Plaintiff brought suit against Phoenix city officials. A district judge refused to request the convention of a three judge court. Plaintiff petitioned the Supreme Court for leave to file a writ of mandamus directing the district judge to appoint two additional judges to sit with him. The Supreme Court held the district judge’s refusal to convene the three judge court was correct since only the enforcement of municipal action by municipal officials was involved. “This suit is not one to restrain ‘the enforcement, operation, or execution’ of a statute of a state within the meaning of section 266. That section was intended to embrace a limited class of cases of special importance and requiring special treatment in the interest of the public. The lower courts have held with substantial unanimity that the section does not govern all suits in which it is sought to restrain the enforcement of legislative action, but only those in which the object of the suit is to restrain the enforcement of a statute of general application or the order of a state board of commission. Thus, the section has long been held inapplicable to suits seeking" }, { "docid": "2463358", "title": "", "text": "to the county treasurers in tentative settlement, for a temporary restraining order, and for interlocutory and final injunctions. Pursuant to an order of the district judge, the motion for an interlocutory injunction came on for hearing, in November, 1923, before a court of three judges constituted as provided in § 266 of the Judicial Code. Because certain of the legal questions presented were deemed similar to those involved in Chicago, Burlington & Quincy R. R. Co. v. Osborne, 265 U. S. 14, then pending in this Court, the interlocutory injunction was granted. The Osborne case was decided on April 28, 1924. On June 23, 1925, the district court, again composed of three judges, appointed, on motion of the Railroad, a special master to take evidence. His report was filed on January 31, 1928. Soon thereafter, the defendants made the motion that the District Judge call two additional judges to his assistance on final hearing. He was not required to do this unless the suit was one in which, as provided in § 266, it is sought to restrain “ the enforcement, operation, or, execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such State . . . upon the ground of the unconstitutionality of such statute.” We are of opinion that Judge Woodrough properly denied the motion. A case does not fall within § 266 unless a statute or an order of- an administrative board or commission is challenged as contrary to the Federal Constitution. Oklahoma Gas Co. v. Russell, 261 U. S. 290; Ex parte Buder, 271 U. S. 461, 465. Here, there was no question as to the validity of the taxing statute. It.was the assessment which the Railroad challenged. And an assessment is not an order made by an administrative board or commission, within the meaning of that section. The function of an assessing board is not" }, { "docid": "22787926", "title": "", "text": "28 U. S. C. § 1253 only if the respective actions were “required ... to be heard and determined by a district court of three judges.” Section 2281 of 28 U. S. C. requires that a three-judge court be convened in any case in which a preliminary or permanent injunction is sought to restrain “the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . .” The purpose of § 2281 is “to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme . . . by issuance of a broad injunctive order” (Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154) and to provide “procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.” Phillips v. United States, 312 U. S. 246, 251. In order for § 2281 to come into play the plaintiffs must seek to enjoin state statutes “by whatever method they may be adopted, to which a State gives her sanction . . . .” American Federation of Labor v. Watson, 327 U. S. 582, 592-593. The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g., Ex parte Collins, 277 U. S. 565; Ex parte Public National Bank, 278 U. S. 101; Rorick v. Board of Commissioners, 307 U. S. 208; Cleveland v. United States, 323 U. S. 329, 332; Griffin v. School Board, 377 U. S. 218, 227-228. The term “statute” in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor" }, { "docid": "5177799", "title": "", "text": "Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795), the narrowness of its original scope, the piece-meal explicit amendments which were made to it (see Act of March 4, 1913, 37 Stat. 1013, and Act of February 13, 1925, 43 Stat. 936, amending § 238 of the Judicial Code), the close construction given the section in obedience to Congressional policy (see, for instance, Moore v. Fidelity & Deposit Co., supra; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699; Ex parte Collins, supra; Oklahoma Gas Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L. Ed. 1318; Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877; Ex parte Public National Bank, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Com’rs, 307 U. S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249, combine to reveal § 266 not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such. “To bring this procedural device into play — to dislocate the normal operations of the system of lower federal courts and thereafter to come directly to this Court — requires a suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an ‘administrative board or commission’. The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy. This was the aim of Congress and this is the reconciling principle of the cases.” Even though the court is properly constituted under the statute, there is no occasion to continue the participation of the two extra judges after the question of the constitutionality of the statute and constitutional provision have been settled and these are no longer in the case. As said in Oklahoma Gas" }, { "docid": "22634158", "title": "", "text": "summary judgment, the court, by a divided vote, granted the Secretary of State’s motion for summary judgment and dismissed the action against the Attorney General, 228 F. Supp. 65 (D. C. D. Conn. 1964). We postponed consideration of the jurisdictional question to the hearing of the case on the merits, 379 U. S. 809. I. A direct appeal to this Court from a district court lies under 28 U. S. C. § 1253 (1958 ed.) only “from an order granting or denying ... an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” Thus we must deal first with the Government’s contention that a three-judge court was improperly convened, for if the contention is correct, this Court lacks jurisdiction over the appeal. Phillips v. United States, 312 U. S. 246, 248. Section 2282 of Title 28 of the United States Code requires the impanelling of a three-judge court in any case where the relief sought is “[a]n interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States . . . .” On its face, appellant’s amended complaint, by calling upon the court below to enjoin the enforcement of the Passport Act of 1926 and § 215 of the Immigration and Nationality Act of 1952,-on the ground that those statutes are unconstitutional, meets the requirements of § 2282. The Solicitor General notes that appellant would be accorded full relief by the voiding of the Secretary’s order. It is true that appellant’s argument — that either the Secretary’s order is not supported by the authority granted him by Congress, or the statutes granting that authority are unconstitutional — is two-pronged. But we have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain a three-judge court: “the joining in the complaint of a nonconstitutional attack along with the constitutional one does not dispense with the necessity to convene such a court.” The Solicitor" }, { "docid": "21006234", "title": "", "text": "Waterfront Commission of New York Harbor, 279 F.2d 853 (CA 2, 1960); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611 (1960); Fiumara v. Texaco, Inc., 240 F.Supp. 325 (E.D.Penn., 1965); Morrison v. State of California, 238 F.Supp. 22 (S.D.Cal., 1964); Christian v. United States, 235 F.Supp. 382 (S.D.Fla., 1964). It would be nothing more than an exercise in futility, to say nothing of a waste of judicial time, for this Court to invoke the convening of a three-judge court if the record in the case is clear on its face that the federal court, whether composed of one judge or three, could not, under the law, grant to the plaintffs the relief sought. But there is even another reason why a three-judge court should not be convened to hear this matter, even on its merits. The law is well settled that cases of this nature simply do not fall within the category of cases contemplated by Title 28 U.S.C.A. § 2281. Thus, in Ex parte Williams, Tax Commissioner, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877 (1928), where the United States Supreme Court had before it a case wherein the plaintiff demanded a three-judge court to enjoin the collection of state taxes on the ground that the equality clause of the Fourteenth Amendment had been violated in making the assessments, the Court said:- “A case does not fall within Section 266 [now 28 U.S.C.A. § 2281], unless a statute or an order of an administrative board or commission is challenged as contrary to the Federal Constitution. Oklahoma [Natural] Gas Co.[mpany] v. Russell, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659; Ex parte Buder, 271 U.S. 461, 465, 46 S.Ct. 557, 70 L.Ed. 1036. Here, there was no question as to the validity of the taxing statute. It was the assessment which the railroad challenged. And an assessment is not an order made by an administrative board or commission, within the meaning of that section. The function of an assessing board is not that of issuing orders. Its function is informational.” And later, in Ex" }, { "docid": "13453381", "title": "", "text": "when it is alleged that defendant is operating its vehicles for hire “through” the state of South Carolina, the only fair inference is that it is operating them from a state or states on one side to a state or states on the other, for “through” is defined by Webster as meaning “into at one point and out at the opposite, or at another point.” There is no question but that defendant is, as a matter of fact, operating in interstate commerce and, for the reasons stated, we think that this fairly appears from the face of the bill. It is contended that the judge below had no jurisdiction to pass upon the case without calling to his assistance two other judges ' so as to constitute a court of three judges as provided by section 266 of the Judicial Code (28 USCA § 380). That section, however has no application to a ease such as this. It applies only where an interlocutory injunction is sought to restrain the action of an officer of the state. Ex parte Public Nat. Bank of New York, 278 U. S. 101, 104, 49 S. Ct. 43, 73 L. Ed. 202; Suncrest Lumber Co. v. N. C. Park Com. (C. C. A. 4th) 29 F.(2d) 823, 824; Henrietta Mills Co. v. Rutherford County (D. C.) 26 F.(2d) 799. Here injunction is not sought against officials of the state, but those officials themselves are seeking the injunction against a private corporation. As we said in the Sunerest Lumber Co. Case, supra, section 266 of the Judicial Code was enacted “because it was thought unseemly that one District .Judge should stop the officers of the state in the enforcement of its laws.” Here it is the officers of the state who are invoking the jurisdiction of the court to stop the action of a private person. On the merits, the case requires little discussion. As heretofore stated, no question is raised as to any failure of defendant to comply with the tax laws or police regulations of the state. It has complied with all of these." }, { "docid": "5899116", "title": "", "text": "holdings: “The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g., Ex parte Collins, 277 U.S. 565 [48 S.Ct. 585, 72 L.Ed. 990]; Ex parte Public National Bank, of New York, 278 U.S. 101 [,49 S, Ct. 43, 73 L.Ed. 202] ; Rorick v. Board of Commissioners, etc., 307 U.S. 208 [59 S.Ct. 808, 83 L.Ed. 1242]; City of Cleveland v. United States, 323 U.S. 329, 332 [65 S.Ct. 280, 281, 89 L.Ed. 274]; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227-228 [84 S.Ct. 1226, 1231-1232,12 L.Ed.2d 256]. The term ‘statute’ in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 [55 S.Ct. 678, 79 L.Ed. 1322]. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, [etc.], supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented ‘by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.’ Wilentz v. Sovereign Camp, WOW, 306 U.S. 573, 579-580 [59 S.Ct. 709, 713, 83 L.Ed. 994].” Id. at 101-102, 87 S.Ct. at 1548. In each of the two appeals in Moody, the Court found the state statute involved to be solely concerned with local matters and that the action was brought to enjoin local officers acting solely with reference to local matters, not against “state officers” within the meaning of § 2281. The Court held it improper to convene a statutory three-judge" }, { "docid": "3215632", "title": "", "text": "he is not required to call two additional judges to his assistance unless the ease is of that nature. Ex parte Williams, 277 U. S. 267, 48 S. Ct. 523, 72 L. Ed. 877; Independent Gin & Warehouse Co. v. Dunwoody (D. C.) 30 F.(2d) 306; Ross v. Goodwin (D. C.) 40 F.(2d) 532; Green v. Hart (D. C.) 41 F.(2d) 854; United States B. & L. Ass’n v. McClelland (D. C.) 6 F. Supp. 299. His decision upon the question is subject to review. The motion for a special court was improvidently made. The statute provides textually that a court convened under its terms shall be necessary only when it is sought to enjoin a state official or members of a state commission or board from enforcing a state statute or from executing an order made by an administrative board or commission pursuant to such a statute. It does not apply to a suit having for its purpose the restraint of county officers from imposing and collecting a local tax. Ex parte Williams, supra; Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. Ed. 990; Ex parte Public Nat. Bank, 278 U. S. 101, 49 S. Ct. 43, 73 L. Ed. 202; Connecting Gas Co. v. Imes (D. C.) 11 F.(2d) 191; Connor v. Board of Commissioners (D. C.) 12 F.(2d) 789. And a mere assessment is not an order within the purview of the statute. Gully v. Interstate Nat. Gas Co., 292 U. S. 16, 54 S. Ct. 565, 78 L. Ed. 1088. The trial judge .was empowered to act upon the motion, and he correctly denied it. Coming to the merits of the case, an appeal to the county court within ten days from the action of the county treasurer upon a proposal to list and assess property omitted from the tax rolls is'expressly authorized by section 12346, Oklahoma Statutes 1931. Such an appeal is administrative as distinguished from judicial. For that reason it must be exhausted before resort can be had to equity. Plaintiff cannot discard that unexhausted administrative remedy and submit" }, { "docid": "22613977", "title": "", "text": "18 Stat. 470, Congress conferred upon the lower federal courts, for but the second time in their nearly century-old history, general federal-question jurisdiction subject only to a jurisdictional-amount requirement, see 28 U. S. C. § 1331. With this latter enactment, the lower federal courts “ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.” F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928) (emphasis added). These two statutes, together with the Court’s decision in Ex parte Young, 209 U. S. 123 (1908) — holding that state officials who threaten to enforce an unconstitutional state statute may be enjoined by a federal court of equity and that a federal court may, in appropriate circumstances, enjoin future state criminal prosecutions under the unconstitutional Act — have “established the modern framework for federal protection of constitutional rights from state interference.” Perez v. Ledesma, supra, at 107 (separate opinion of Brennan, J.). A “storm of controversy” raged in the wake of Ex parte Young, focusing principally on the power of a single federal judge to grant ex parte interlocutory injunctions against the enforcement of state statutes, H. Hart & H. Wechsler, The Federal Courts and the Federal System 967 (2d ed. 1973); see generally Goldstein v. Cox, 396 U. S. 471 (1970); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 804-805 (1934). This uproar was only partially quelled by Congress' passage of legislation, 36 Stat. 557, requiring the convening of a three-judge district court before a preliminary injunction against enforcement of a state statute could issue, and providing for direct appeal to this Court from a decision granting or denying such relief. See 28 U. S. C. §§ 2281, 1253. From a State’s viewpoint the granting of injunctive relief- — -even by these courts of special dignity — “rather clumsily” crippled state enforcement of its statutes pending further review, see H. R. Rep. No. 288, 70th Cong., 1st Sess., 2 (1928);" }, { "docid": "3215630", "title": "", "text": "statement in writing or evidence submitted concerning the valuation and assessment of the property would he considered, and that, if no objection were made on or before a date named, the property would he assessed and the assessment extended upon the tax rolls. Plaintiff filed an objection in writing against the proposed assessment and extension of the tax. The eounty treasurer heard the matter and declined to list the property or extend the tax. Defendants Shilling and Stoutz, pretending and assuming to act for the state appealed from that action to the county court of Carter county. While the proceeding was pending there and awaiting action by that court, plaintiff instituted this suit in the court below to enjoin the assessment of the property and the extension of the tax. It was alleged that throughout the years in question the situs of the property for taxation purposes was in Minnesota, and for that reason it was not subject to tax in Oklahoma; that plaintiff had paid to the state of Minnesota all tax due it under the laws of that state (it was not alleged that any tax had been paid on this particular property), and that to impose the asserted tax would amount to double taxation; that the tax amounts to more than $100,000; that plaintiff is unable to pay it; that its assessment and extension would constitute a lien upon all of plaintiff’s property causing purchasers to decline to pay for oil and gas; and that a multiplicity of suits would be necessary to remove the lien. Diversity of citizenship and double taxation, said to be in contravention of the Constitution of the United States, were relied upon to confer jurisdiction upon the court. A special court of three judges was sought, convened in accordance with section 266 of the Judicial Code (28 USCA § 380). The trial judge declined to convene such a court, and dismissed the bill. A trial' judge is authorized to determine in the first instance whether a case is one requiring disposition by a special court convened in accordance with the statute, and" }, { "docid": "5899115", "title": "", "text": "enforcement is the city ordinance enacted pursuant to the enabling statute which vests local control and enforcement in the city. This the city has undertaken in its ordinance. We hold the trial court properly dismissed the Attorney General of Illinois as a party defendant and in that respect the action of the trial court is affirmed. II. Plaintiffs contend that the trial court erred in denying their request for a statutory three-judge district court. We disagree. As we have shown above, the state statute concerned is merely permissive enabling legislation pursuant to which the critical city ordinance was enacted and enforced. The Attorney General of Illinois, the only officer of the state sought to be enjoined, has been properly dismissed as a party defendant. Thus there remains for consideration only a local city ordinance enforced by local officials. Clearly the requirements of 28 U.S.C.A. § 2281, supra, are not satisfied here. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967) appears dis-positive of this proposition. There the Court reaffirmed its prior holdings: “The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g., Ex parte Collins, 277 U.S. 565 [48 S.Ct. 585, 72 L.Ed. 990]; Ex parte Public National Bank, of New York, 278 U.S. 101 [,49 S, Ct. 43, 73 L.Ed. 202] ; Rorick v. Board of Commissioners, etc., 307 U.S. 208 [59 S.Ct. 808, 83 L.Ed. 1242]; City of Cleveland v. United States, 323 U.S. 329, 332 [65 S.Ct. 280, 281, 89 L.Ed. 274]; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227-228 [84 S.Ct. 1226, 1231-1232,12 L.Ed.2d 256]. The term ‘statute’ in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is" }, { "docid": "3215633", "title": "", "text": "Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. Ed. 990; Ex parte Public Nat. Bank, 278 U. S. 101, 49 S. Ct. 43, 73 L. Ed. 202; Connecting Gas Co. v. Imes (D. C.) 11 F.(2d) 191; Connor v. Board of Commissioners (D. C.) 12 F.(2d) 789. And a mere assessment is not an order within the purview of the statute. Gully v. Interstate Nat. Gas Co., 292 U. S. 16, 54 S. Ct. 565, 78 L. Ed. 1088. The trial judge .was empowered to act upon the motion, and he correctly denied it. Coming to the merits of the case, an appeal to the county court within ten days from the action of the county treasurer upon a proposal to list and assess property omitted from the tax rolls is'expressly authorized by section 12346, Oklahoma Statutes 1931. Such an appeal is administrative as distinguished from judicial. For that reason it must be exhausted before resort can be had to equity. Plaintiff cannot discard that unexhausted administrative remedy and submit its grievance to a court of equity. This court has so declared upon facts bearing essential similarity to those presented here. Ex parte State of Oklahoma, 37 F.(2d) 862; Rounds & Porter Lumber Co. v. Livesay, 65 F.(2d) 298. See, also, Kansas City Southern Ry. Co. v. Cornish (C. C. A.) 65 F.(2d) 671; Farncomb v. City and County of Denver, 252 U. S. 7, 40 S. Ct. 271, 64 L. Ed. 424; Milheim v. Moffat Tunnel Imp. Dist., 262 U. S. 710, 43 S. Ct. 694, 67 L. Ed. 1194; First National Bank v. Board of Com’rs of Weld County, 264 U. S. 450, 44 S. Ct. 385, 68 L. Ed. 784; Gorham Mfg. Co. v. State Tax Commission, 266 U. S. 265, 45 S. Ct. 80, 69 L. Ed. 279; Porter v. Investors’ Syndicate, 286 U. S. 461, 52 S. Ct. 617, 76 L. Ed. 1226; Utley v. City of St. Petersburg, 292 U. S. 106, 54 S. Ct. 593, 78 L. Ed. 1155. It is provided by section 12660 of the Statutes" }, { "docid": "19225513", "title": "", "text": "MOORE, Circuit Judge. Plaintiffs, I. William Bianchi, Jr., and Quentin B. Sammis, residents of the Towns of Brookhaven and Huntington, Suffolk County, State of New York, bring this action in their own behalf and in behalf of all other taxpayers and voters of Suffolk County, against the ten individual defendants, each of whom is an elected Supervisor of his respective town and who collectively constitute the Board of Supervisors of Suffolk County (1) to declare void and invalid as violative of the Fourteenth Amendment of the United States Constitution so much of Section 203 of the Suffolk County Charter, Laws 1958, c. 278 as provides that'each Supervisor shall have one vote as a member of the Suffolk County Board of Supervisors; (2) to enjoin the defendants from acting as the Board of Supervisors unless and until a change in their voting strength is made; and (3) to cause to be convened a three-judge court to hear and determine the ease (28 U.S.C. § 2281 et seq.). A motion was made to dismiss the complaint upon the ground, amongst others, that no substantial federal ques tion is raised. The motion was denied without prejudice to renewal before a three-judge court, Bianchi v. Griffing, 217 F. Supp. 166 (E.D.N.Y.1963). Thereafter, a three-judge court was convened and a hearing was held, upon which the motion to dismiss was renewed. Many eases have been pending in the Supreme Court and in other courts arising out of the decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962) but despite the plethora of cases filed and the Supreme Court decisions of June 1964, there has been found no Supreme Court case which overturns the principle announced by that Court that section 2281 does not apply where “although the constitutionality of a statute is challenged, the defendants are local officers and the suit involves matters of interest only to the particular municipality or district involved.” Ex parte Collins, 277 U.S. 565, 568, 48 S.Ct. 585, 586, 72 L.Ed. 990 (1928). See also Rorick v. Board of Com’rs, 307 U.S. 208," }, { "docid": "15144781", "title": "", "text": "v. Daughton, 262 U.S. 413, 426, 43 S.Ct. 620, 67 L.Ed. 1051. An action at law is clearly not available to the United States, since the United States cannot constitutionally appropriate money from the federal treasury in order to pay a tax before suing for refund. Any remedy at law that requires an appropriation as a condition precedent to relief is neither adequate nor efficient, United States v. Rickert, 188 U.S. 432, 444, 23 S.Ct. 478, 47 L.Ed. 532; and, further, it does not appear that the amendment to Sec. 24 applied to' the United States, since it is not specifically included therein. Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80. Again it is urged that the issues are such as to require the convening of a three judge court; but this is not a suit to enjoin the enforcement of a statute, but merely an assessment, Gully v. Interstate Nat. Gas Co., 292 U.S. 16, 18, 54 S.Ct. 565, 78 L.Ed. 1088; it is not alleged nor-does' it appear that the suit is against an officer of a state, but against an officer of a city, Ex parte Collins, 277 U.S. 565, 568, 48 S.Ct. 585, 72 L.Ed. 990; nor is it grounded upon the constitutionality of a state statute, Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L. Ed. 877; Ex parte Hobbs, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353. In the absence of a substantial claim of unconstitutionality, Sec. 266 is not operative. Ex parte Buder, 271 U.S. 461, 466, 467, 46 S.Ct. 557, 70 L.Ed. 1036; Ex parte Williams, supra, page 271, 48 S.Ct. 523. The real question on the merits is: whether the use of property of the United States by a lessee for private purposes pending a sale by the .United States, such property having been previously acquired and used for a post office site, but since 1933 abandoned by the United States for that purpose, is, since January 1, 1937, still exempt from local taxation under Sec. 5, Chap. 59 (G.L.1932), as amended by" } ]

[ { "docid": "23255849", "title": "", "text": "provided if the warden so directed. Dale states that he made this latter request on the last day to submit his grievance and so the response he got made it “virtually impossible to pursue a complaint.” Dale made no further attempt to obtain the proper grievance forms until March 2002' — -18 months later — when he requested the forms while housed in Lom-poc. On appeal the defendants first argue that since Dale included all of his factual representations in his unsworn response to the motion for summary judgment rather than in an affidavit, there is no admissible evidence to support his version of events. However, Dale attached to his response to the defendants’ motion for summary judgment an “Affidavit in Support” in which he swears to the truth of the factual allegations in that response, and those allegations, had they been included in the affidavit directly, without question would be considered evidence, not merely assertion. “By declaring under penalty of perjury that the [response] was true, ... he converted the [response], or rather those factual assertions in the [response] that complied with the requirements for affidavits specified in the rule ... into an affidavit,” Ford v. Wilson, 90 F.3d 245, 247 (7th Cir.1996), thereby complying with Federal Rule of Civil Procedure 56(e). Therefore, Dale’s verified response constitutes competent evidence to rebut the defendants’ motion for summary judgment. The district court did not address any of Dale’s evidence directly, but merely described his allegations as “bald assertions,” and stated that he failed to “cite specific concrete facts establishing the existence of the truth” of his complaint. But in his response Dale identifies the prison em ployees from whom he requested forms: his counselor, his case manager, the on-duty floor officer, and members of his unit team. Dale also identifies the specific form he requested, the BP-8, which is the first form the Bureau of Prisons requires inmates to complete in order .to submit a grievance, see 28 C.F.R. § 542.13(a); Massey II, 259 F.3d at 643. Dale also avers that the on-duty officer gave him blank sheets of paper when" } ]

[ { "docid": "2480734", "title": "", "text": "POSNER, Chief Judge. Roy Ford brought suit under 42 U.S.C. § 1983 against a police officer who had arrested him after a traffic stop. The district judge granted summary judgment for the defendant, noting that Ford had not submitted an affidavit or equivalent evidence in opposition to the defendant’s affidavit. But he had. For he had verified his complaint, and the complaint contains factual allegations that if included in an affidavit or deposition would be considered evidence, and not merely assertion. Rule 56(e) of the Federal Rules of Civil Procedure provides that “when a motion for summary judgment is made and supported as provided in this rule, an ad verse party may not rest upon the mere allegations or denials of the ... party’s pleading.” See also Advisory Committee’s Note to 1963 Amendment to Subdivision (e). But Ford did not rest upon “mere allegations or denials” in his complaint. By declaring under penalty of perjury that the complaint was true, and by signing it, he converted the complaint, or rather those factual assertions in the complaint that complied with the requirements for affidavits specified in the rule — that they “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein,” Fed. R.Civ.P. 56(e) — into an affidavit. That it was not called “affidavit” is of no moment, Northwestern Nat'l Ins. Co. v. Corley, 503 F.2d 224, 231 (7th Cir.1974); nor that much contained within it did not comply with the stringent requirements of the rule, for that is true of many so-called “affidavits” submitted in support of or opposition to summary judgment. Because the complaint was verified, 28 U.S.C. § 1746, as of course an affidavit must be, Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985), those parts of the complaint that satisfied the requirements that we quoted above were affidavit material. Every circuit to consider the issue has so held. See, e.g., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995); Schroeder v. McDonald, 55" }, { "docid": "16879492", "title": "", "text": "from his parents also suggest that Paters received a plea offer and seriously considered it. However, these statements do not reflect personal knowledge on the part of the parents, but merely relate naked allegations of Paters himself. Such tenuous assertions fall short of being objective evidence. Paters also submitted a “Declaration in Support of 28 U.S.C. § 2255 Motion” which he signed under penalty of perjury pursuant to 28 U.S.C. § 1746. However, this document does not constitute \"objective evidence” under Toro. . We think it would have been plausible for Paters to provide more compelling evidence that, but for his attorney’s advice, he' would have accepted the plea deal. Since the attorney-client privilege is petitioner's to waive, see Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 (7th Cir.1995) (\"[T]he attorney-client privilege is generally waived when the client asserts claims or defenses that put his attorney’s advice at issue in the litigation.”), one way for Paters to establish his reaction to the plea would be to submit an affidavit from defense counsel. See United States v. Day, 969 F.2d 39 (3d Cir.1992) (stating that lawyer's corroboration \"might qualify as sufficient confirming evidence\" that petitioner would have accepted plea offer but for attorney’s advice). As another illustration, Paters could have submitted an affidavit from the Assistant U.S. Attorney establishing that the government in fact offered a plea agreement. . Judge Coffey argues that the district court should not have ordered the government to answer the § 2255 petition on grounds that petitioner offered insufficient evidence to warrant an answer. See Judge Coffey's Opinion at 1051-52 (citing Rule 4(b) of the Rules Governing § 2255 Proceedings). However, since the government has not challenged the court’s order requiring an answer, the issue is waived. See Nichols v. United States, 75 F.3d 1137, 1145 n. 17 (7th Cir.1996) (stating that government waives non-jurisdictional argument by failing to raise it on appeal). Even if the government had properly raised the issue, it is still not clear that we would review an erroneous order requiring the government to answer a § 2255 petition. Like a" }, { "docid": "4834039", "title": "", "text": "in violation of Title VII. The complaint also details how the harassment altered the conditions of Dr. Jajeh’s employment, as well as Cook County’s failure to take remedial action in response to the alleged harassment. Cook County had fair notice of the hostile-work-environment claim; Dr. Jajeh was “not required to plead with precision legal theories or detailed facts.” Benuzzi v. Bd. of Educ. of Chicago, 647 F.3d 652, 664 (7th Cir.2011). And the district court also believed the issue was properly raised, otherwise it would not have reached the merits of the claim. Cf. Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996) (district court properly denied plaintiffs attempt to amend complaint in his response to defendant’s motion for summary judgment). Turning to the merits of the claim, the district court found no evidence that the harassment Dr. Jajeh suffered was due to his religion or national origin. Rather, the evidence in the record demonstrated only that Dr. Jajeh had a personality conflict with Dr. Catchatourian. Key to this determination was the district court’s exclusion of a declaration submitted by Dr. Jajeh as Exhibit 1 with his response to Cook County’s motion for summary judgment. In this declaration, Dr. Jajeh described Dr. Catchatourian’s derogatory comments that lie at the heart of his hostile-work-environment claim. The court excluded the declaration because it was unsworn, and not subscribed “under penalty of perjury,” as required by 28 U.S.C. § 1746. Dr. Jajeh argues that the district court erred by not considering the declaration because, in doing so, the court relied on our precedent holding that an unsworn declaration does not comply with (now former) Federal Rule of Civil Procedure 56(e). E.g., DeBruyne v. Equitable Life Assurance Soc’y, 920 F.2d 457, 471 (7th Cir.1990) (unsworn affidavit not subscribed under penalty of perjury was not within range of evidence that district court could consider); Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir.1990) (unsworn affidavits not subscribed under penalty of perjury did not comply with Rule 56(e)). In 2010, Rule 56 was reorganized and altered. “Subdivision (c)(4) carries" }, { "docid": "22392425", "title": "", "text": "legal mail system available, Price would have to prove his timely filing by executing a notarized statement or a declaration under penalty of perjury pur suant to 28 U.S.C. § 1746 setting forth the date of his deposit in the regular mail system and stating that he included prepaid postage. See Ceballos-Martinez, 387 F.3d at 1145. Here, Price’s certificate of service states only that he “respectfully submitted” his complaint on June 14, 2002. He also “certifies] ... that this suit was placed in the institutional mails on this 14th day of June, 2002, with the appropriate postage attached.” However, there is no “under penalty of perjury” language as specifically required by 28 U.S.C. § 1746. Therefore, Price has not sufficiently alleged, let alone established, his compliance with the mailbox rule under either scenario. Accordingly, we conclude the district court was correct in its determination that Price is not entitled to the benefit of the mailbox rule and his complaint was therefore “filed” when it was received by the court on June 18, 2002. As such, his search-related claims were untimely and we affirm the district court in this regard. B. SUMMARY JUDGMENT CONVERSION Next, Price claims that the district court improperly converted Defendants’ motions to dismiss under Rule 12(b)(6) to motions for summary judgment under Rule 56 without the necessary notice to Price. Price is correct as a matter of law that when a district court relies on material from outside the pleadings, the court converts the motion to dismiss into a motion for summary judgment. Lamb v. Rizzo, 391 F.3d 1133, 1136 (10th Cir.2004). And when such a conversion occurs, the district court “must provide the parties with notice so that all factual allegations may be met with countervailing evidence.” Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir. 2005). However, here, it seems clear the district court did not convert Defendants’ motions to one for summary judgment. Although Price is correct that the parties were conducting discovery at the time of the court’s decision, the district court expressly indicated that “[t]he court has before" }, { "docid": "6627507", "title": "", "text": "MEMORANDUM ORDER FISH, District Judge. Introduction This case is before the court on the motion of defendant Dudley M. Hughes, Jr. (“Hughes”) to strike the affidavit, unsworn statements, depositions, and exhibits contained in the appendices to the motion for summary judgment of plaintiff Federal Trade Commission (“FTC”). The motion to strike is DENIED in its entirety, except that the court will disregard certain conclusions of law in Curtistene McCowan’s affidavit. Appendix C Hughes first contends in a general and conclusory manner that the 30 un-sworn customer statements in Appendix C have not been authenticated and violate the hearsay rule. This is incorrect. The statements comply with 28 U.S.C. § 1746, as each declaration was made under penalty of perjury. Hence, they have the same force and effect as affidavits. 28 U.S.C. § 1746. They also comport with the Federal Rules of Evidence and of Civil Procedure. Each affidavit shows affirmatively that the declarant is competent to testify to the matters therein, F.R.Civ.P. 56(e), and sets forth facts demonstrating personal knowledge. F.R.Evid. 602. Each contains detailed, specific statements based on personal knowledge and experience. Consequently, the declarations are not hearsay. In addition, the statements within the declarations attributed to the defendant or his employees are also admissions by a party-opponent and hence are not hearsay. F.R.Evid. 801(d)(2). Moreover, under F.R.Evid. 901(a), authentication is satisfied by evidence supporting “a finding that the matter in question is what its proponent claims.” Here, each statement is authenticated by the signature of the witness under penalty of perjury. 28 U.S.C. § 1746. There is no indication that the statements are anything other than what they purport to be. Appendix D Hughes contends conclusorily that the 21 sample contracts, statements, and price lists in this appendix have not been authenticated and violate the hearsay rule. Several factors establish their authenticity. First, the documents were submitted by Hughes in response to plaintiff's discovery requests. Second, he identified several in his deposition testimony. Hughes Deposition, Apr. 8, 1988, at 23-24 (identifying Appendix D, No. 11) and at 46 (identifying Appendix D, No. 18). Third, the defendant provided his" }, { "docid": "14030810", "title": "", "text": "relevant to this appeal. First, we have held that Houston applies to notices of appeal filed in bankruptcy appeals. See In re Flanagan, 999 F.2d 753, 758 (3d Cir.1993). We reasoned that “[a] pro se prisoner seeking to appeal a bankruptcy court order faces precisely the same problems as a prisoner who wishes to file a pro se appeal from an order dismissing a habe-as petition.” Id. Second, we have extended Houston to motions to alter or amend judgment pursuant to Rule 59(e), Federal Rules of Civil Procedure. See Smith v. Evans, 853 F.2d 155, 161 (3d Cir.1988). By analogy we believe that the teachings of these cases should apply to Rashid’s Motion for Rehearing pursuant to Bankruptcy Rule 8015, “the bankruptcy counterpart” to Rule 59(e), Federal Rules of Civil Procedure. See Matter of Grabill Corp., 983 F.2d 773, 775 (7th Cir.1993). Rashid seeks the benefit of the prisoner mailbox rule, and he has filed a declaration pursuant to Rule 4(c)(1) that permits a prisoner to demonstrate timely filing by submitting a declaration “in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.” Rule 4(c)(1), Federal Rules of Appellate Procedure. Rashid filed a declaration properly sworn under penalty of perjury stating that he handed his motion with first-class postage prepaid to prison officials on Friday, June 12, 1998. See 28 U.S.C. § 1746. The United States has offered no evidence to rebut Rashid’s assertion. Accordingly, we find that Rashid timely filed his notice of appeal. Jurisdiction was proper in the District Court pursuant to 28 U.S.C. § 158(a). Jurisdiction is proper in this court pursuant to 28 U.S.C. § 158(d). Because the District Court sat as an appellate court, reviewing an order of the Bankruptcy Court, our review of the District Court’s determinations is plenary. See In re Continental Airlines, 125 F.3d 120, 128 (3d Cir.1997). “In reviewing the bankruptcy court’s determinations, we exercise the same standard of review as the district court.” Fellheimer, Eichen & Braverman, P.C. v. Charter" }, { "docid": "14090265", "title": "", "text": "sworn to or certified. In short, the [Whiteviper records] do not rise to the level of evidentiary quality and alone may not be used to withstand summary judgment. (Mag. Judge’s R & R at 9 n. 2, 10.) The magistrate judge’s concerns are well-justified. Rule 56(e) of the Federal Rules of Civil Procedure provides, in pertinent part: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirma tively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Fed. R. Civ P. 56(e). A close cousin of the Rule 56 affidavit is found in § 1746 of Title 28 of the United States Code, which provides, in pertinent part: Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: (1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)” 28 U.S.C. § 1746. Trone’s declaration was made outside of the United States and contains the significant language from § 1746. Houck’s affidavit is at least proper on its face; therefore, the two may be considered as before the court to rebuff defendant’s" }, { "docid": "22369356", "title": "", "text": "into a Rule 56 motion, we note that the Hieronymus declaration does not comply with the requirements of Rule 56. In ruling on a-motion for summary judgment, a court may substitute an unsworn declaration for a sworn affidavit if the declaration complies with 28 U.S.C. § 1746. But .such documents must be based on “personal knowledge,” Fed. R.Civ.P. 56(e), and must be “subscribed by” the declarant, 28 U.S.C. § 1746. A declaration signed by someone else for the declarant does not comply. We therefore hold that the district court erred in dismissing Horner’s Rule 41(e) motion. B. Adequate Notice As is evident from the foregoing discussion, the record has not been developed on the question of whether Horner received adequate notice of the impending administrative forfeiture. Some of the relevant facts, however, are undisputed by the parties. The parties have briefed to us the legal issues regarding notice, and these issues will be before the district court on remand. Therefore, to the extent feasible — based on the facts that are undisputed — we address these legal issues. See United States v. Culps, 300 F.3d 1069, 1079(9th Cir.2002); Pope v. Man-Data, Inc., 209 F.3d 1161, 1164 (9th Cir.2000); Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1072 (9th Cir.1983). Federal law authorizes forfeiture in drug cases and incorporates forfeiture procedures from the Tariff Act. See 21 U.S.C. § 881(d). Before forfeiting property, the DEA must publish notice for at least three weeks and must also send “[w]ritten notice of seizure together with information on the applicable procedures ... to each party who appears to have an interest in the seized article.” 19 U.S.C. § 1607(a). Federal regulations provide further guidance, instructing that notice must identify the time, cause, and place of the seizure, and must instruct potential claimants on how to file a claim with the DEA. See 21 G.F.R. § 1316.75. Because forfeitures are disfavored, see United States v. One Ford Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 83 L.Ed. 1249 (1939), forfeiture laws and their notice provisions are “strictly construed ... against the government,” Marolf, 173 F.3d" }, { "docid": "203736", "title": "", "text": "insufficient to allow us to conclude that Gilty might have been promoted even without the Village's alleged discrimination. . As we have previously noted, the Court's decision in Wards Cove curtailed the scope of disparate impact liability under Title VII. Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1533 (7th Cir.1990). . The district court also rejected Gilty’s statistical pool as too small, and as we have previously noted, \"especially where statistical evidence is involved, great deference is due the district court's determination of whether the resultant numbers are sufficiently probative of the ultimate fact in issue.\" Soria, 704 F.2d at 994 n. 6; see also G. Heileman Brewing Co. v. Anheuser-Busch, Inc., 873 F.2d 985, 995 (7th Cir.1989). . Gilty also argues that the chief of police falsified his academic credentials. This argument derives solely from the \"affidavits” of Belen and Margaret Zangrilli, but these affidavits were neither notarized nor made under the penalty of perjury and, therefore, did not comply with rule 56(e) of the Federal Rules of Civil Procedure. As such, we can simply ignore them. See 28 U.S.C. § 1746 (permits unsworn declarations only if made \"under penalty of perjury\" and verified as “true and correct”); see also Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985) (un-sworn statement does not meet requirements of Fed R.Civ.P. 56(e)) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 n. 19, 90 S.Ct. 1598, 1609 n. 19, 26 L.Ed.2d 142 (1970)). . Indeed, Stec was charged prior to Gilty. . Gilty’s reply brief cites Wilson v. Pfeiffer, 31 Fair Emp.Prac.Cas. (BNA) 1154 (S.D.N.Y.1982), in support of his argument that the Village’s reason for his termination may be pretextual. In that case, the district judge concluded that the employer’s reason for discharging the plaintiff — his falsification of academic credentials and poor working relationship with his supervisor — could have been pretextual. The district court derived this conclusion from evidence suggesting that the plaintiff had received favorable reviews despite his lack of a master's degree, that the plaintiff's certification was not revoked in light of his \"outstanding employment" }, { "docid": "20258607", "title": "", "text": "facts (“UMF”) (Doc. No. 114-1); (2) a declaration of Harold J. Fassnacht (“Fassnacht Declaration”), attaching exhibits A through E (Doc. No. 114-2); and (3) a declaration from Ruby Wu (“Wu Declaration”), attaching Exhibit A (Doc. No. 114-3). On May 27, 2011, Defendant filed its reply in support of the Motion (“Reply”) (Doc. No. 115), along with evidentiary objections to the Fassnacht and Wu Declarations (“Defendant’s Evidentiary Objections”) (Doe. No. 116). B. Evidentiary Objections First, Defendant objects to both the Fassnacht and Wu Declarations because they do not satisfy the statutory requirement of 28 U.S.C. § 1746 that the statements within be sworn under penalty of perjury. (Def.’s Evidentiary Objections at 2.) Defendant also objects to the statements in the Wu Declaration as lacking foundation as to personal knowledge, and containing only conclusory statements, speculation, and hearsay. (Id. at 2-9.) The Court sustains Defendant’s objections to the Fassnacht and Wu Declarations on both grounds. First, compliance with the requirement of 28 U.S.C. § 1746 is mandatory, and neither Fassnacht nor Wu comply with its requirements by stating that their declarations are made under penalty of perjury. See, e.g., Schroeder v. McDonald, 55 F.3d 454, 460 n. 10 (9th Cir.1995) (accepting as valid a declaration that did not follow § 1746 with precision, but asserted that statement was made under penalty of perjury that the contents were true and correct). Defendant filed its objections on May 27, 2011, and therefore Plaintiff had ample notice of this deficiency, and could have remedied it by submitting sworn declarations. Plaintiff failed to do so. Additionally, Defendant’s objections to the Wu Declaration are well-taken. In her declaration, Wu does not state her job title, her job responsibilities, or why or how she has knowledge of the facts she asserts. Accordingly, the Wu Declaration is inadmissible under Federal Rule of Civil Procedure 56(c)(4) as lacking an adequate foundation. Accordingly, the Court does not rely upon the statements in either the Fassnacht or Wu Declarations to resolve the Motion. C. Uncontroverted Facts The Court finds the following material facts are supported adequately by admissible evidence and are uncontroverted." }, { "docid": "22392432", "title": "", "text": "of such person which is subscribed by him, as true under penalty of perjury, and dated.” 28 U.S.C. § 1746. In describing the requirements of a § 1746 declaration, we have consistently emphasized that the writer must “subscribe” the statement “as true under penalty of perjury.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 570 n. 1 (10th Cir.1994); accord Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997) (permitting statements \"made under penalty of perjury”); Hall v. Furlong, 77 F.3d 361, 363 n. 2 (10th Cir.1996) (same); Thomas v. U.S. Dep’t of Energy, 719 F.2d 342, 345 n. 3 (10th Cir.1983) (accepting \"unsworn declarations given under penalty of perjury”). The sample declaration provided by § 1746 for statements executed within the United States would have the writer state: \"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746. . Moreover, many circuits have interpreted Fed. R.App. P. 4 to require a notarized statement or a declaration under penalty of perjury in every case, even where an inmate claims to have used the prison legal mail system. See 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3950.12 (3d ed. 2005 Supp.). Although dicta in Cebdllos-Martinez suggests that in this Circuit a notarized statement or perjury declaration is required only in the case of an inmate who does not have access to a legal mail system, 387 F.3d at 1145, a future case may hold otherwise. See Wright, Miller, & Cooper, Federal Practice § 3950.12 at n. 19 (calling our interpretation in Cebal-los-Martinez \"questionable”). We need not try to resolve that issue here, since any statements to that effect in this case would also be dicta. However, we strongly suggest as a matter of prudence that all pro se prison filings seeking the benefit of the mailbox rule include a notarized statement or penalty declaration as required under § 1746. . Cf. Gray, 182 F.3d at 764, 766 (giving inmate who stated he placed motion \"in" }, { "docid": "21307217", "title": "", "text": "at the summary judgment hearing did not require the bankruptcy court to consider or give credit to it. CMS Industries, Inc. v. L.P.S. Intern., Ltd., 643 F.2d 289, 295 (5th Cir.1981). Contrary to the majority’s suggestion in footnote 7, it should in no way prejudice Peninsula, as the appel-lee and party seeking to sustain the judgment below, that the courts below properly disregarded Dr. Freedenburg’s statement, notwithstanding Peninsula’s failure to object. Thus, I cannot join the majority opinion because it results in a ruling that not only suggests that the bankruptcy court had to consider Dr. Freedenburg’s “affidavit,” but also goes so far as to say the bankruptcy court should have denied summary judgment based on the assertions contained therein. Instead, I concur in the result reached by the majority opinion because the evidence contained in the record — circumstantial or otherwise — is insufficient to conclude at the summary judgment stage that French possessed the requisite fraudulent intent. I. Rule 56(e) of the Federal Rules of Civil Procedure provides that when affidavits are used to support or oppose a summary judgment motion, they “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein.” These requirements are mandatory. 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2788 (3d ed.2007). Dr. Freedenburg’s statement was neither sworn under oath nor made under the penalty of perjury. As a result, the statement fails to meet the most basic requirement of form required by Rule 56(e). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (noting that unsworn statement in support of motion for summary judgment did not meet the requirements of Fed. R.Civ.P. 56(e)); see also 28 U.S.C. § 1746 (setting forth requirements for declarations and affidavits submitted to the court). Second, Dr. Freedenburg’s statement does not set forth facts that would be admissible in evidence because nowhere does Dr. Freedenburg" }, { "docid": "10172953", "title": "", "text": "the emails he received from Sterling’s brokers. See Whitney Decl. ¶¶ 103-107, 109-10 (citing Proposed Penalty Letter, Ex. P). It is also made under “penalty of perjury” and is said to be “true and correct.” Whitney Deck at 25; 28 U.S.C. § 1746 (governing unsworn declarations made under penalty of perjury). There is no indication that the declarant is not “competent” to testify; thus, the issue is whether the affidavit states “facts that would be admissible in evidence.” USCIT Rule 56(c)(4). Hearsay is an out of court statement offered “to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible at trial unless a federal statute, Federal Rule of Evidence, or other rule “prescribed by the Supreme Court” provides otherwise. Fed. R. Evid. 802. Nonetheless, a court “may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (citation omitted). Cf. USCIT Rule 56(c)(2). The statements by Sterling’s customs brokers and freight forwarder as contained in emails to the customs official are hearsay to the extent they are used to prove the truth of the matter asserted, that is, that Sterling (or Seattle Logistics) provided the customs brokers and freight forwarder with the tariff classifications. See Proposed Penalty Letter, Ex. P at ECF pp. 11, 14, 25, 28, 32, 40, 54. However, “[t]he most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial.” Jones, 683 F.3d at 1294 (nevertheless declining to consider a hearsay statement when the declarant’s sworn deposition testimony contradicted the hearsay statement). There is no indication that the declar-ants — the brokers and freight forwarder— would be unable to testify at trial. Cf. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (district court erred in refusing to consider hearsay statements contained in an affidavit for purposes of summary judgment when" }, { "docid": "9872635", "title": "", "text": "the certifications. Local Rule 5.1(h) and 28 U.S.C. § 1746 contemplate as adequate certifications that are “substantially” in the form of the language of their provisions. A declaration or certification that includes the disclaimer “to the best of [the declarant’s] knowledge, information or belief’ is sufficient under the local rule, the statute. See United States v. Roberts, 308 F.3d 1147, 1154-55 (11th Cir.2002), cert. denied, 538 U.S. 1064, 123 S.Ct. 2232, 155 L.Ed.2d 1119 (2003). Moreover, the July 28, 2003 injunction directed only that the certifications be made in accordance with Rule 11 of the Federal Rules of Civil Procedure. Cobell IX, 274 F.Supp.2d at 136. Rule 11(a) provides that “[e]xeept when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit,” Fed.R.Civ.P. 11(a), and the district court cited to no other requirement compelling verification. Further, Rule 11(b), which governs “Representations to the court,” explicitly contemplates certifications to “the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances....” Fed.R.Civ.P. 11(b). The district court therefore erred in rejecting Interior’s submissions as “procedurally ... defective.” Cobell XI, 310 F.Supp.2d at 83. Furthermore, the district court seemed to be insisting on compliance with Rule 56(e) of the Federal Rules of Civil Procedure, which expressly requires affidavits to be based on personal knowledge. But that rule applies to a motion for summary judgment. Here the district court treated the matter as a preliminary injunction proceeding. Nothing in the rules specifies what sort of affidavits are required at the preliminary injunction stage. This court has never decided that the Rule 56(e) standard should apply to such proceedings and there is good reason to believe it should not. Summary judgment substitutes for trial and it therefore makes sense to require evidentiary submissions to consist only of admissible evidence. A preliminary injunction is just that — preliminary. It does not substitute for a trial, and its usual office is to hold the parties in place until a trial can take place; the proceedings are streamlined, intentionally, because the fuse is often so short. See" }, { "docid": "4321149", "title": "", "text": "at trial.”). However, in opposition to the defendants’ motion, the pro se plaintiff, who initiated the action by filing the form complaint, and who later filed an amended form complaint, has rested upon the allegations of those pleadings instead of setting forth specific facts, by affidavit or otherwise, in an effort to show that there is a genuine issue of material fact for trial. See Rule 56(e), Federal Rules of Civil Procedure (the nonmovant “may not rest upon the mere allegations” of his pleadings). Ordinarily, having done so, the pro se plaintiff, who carries the burden of proof, would be deemed to have failed to create a genuine issue of material fact for resolution at trial. Indeed, the defendants point out that their motion “informed the plaintiff that any factual assertion in the defendants’ affidavits would be accepted by the court as being true unless the plaintiff submitted his own affidavits or other documentary evidence contradicting those factual assertions” in compliance with the local rule. Defendants’ Reply Brief at 1. They now call for that local rule to work to their benefit. However, they overlook the fact that the rule places restrictions only upon them, the movants. The rule certainly does not purport to impose any additional restrictions upon the pro se plaintiff, nor does it obligate the court to accept as true the factual assertions in the movant’s affidavits. The purpose of the rule is simply to ensure that the movant informs the pro se nonmovant of the potential consequences of a failure to proffer the eviden-tiary materials called for by Rule 56(e). More significantly, the defendants have also overlooked the effect of 28 U.S.C. § 1746. When a pro se plaintiff has declared in his form complaint under penalty of perjury that, among other things, the factual allegations contained in his statement of claim are true and correct, as called for by 28 U.S.C. § 1746, he ostensibly faces criminal prosecution for perjury should it be proved that he willfully or knowingly made material statements that are false, see 18 U.S.C. §§ 1621, 1623. In return, the statute" }, { "docid": "1541889", "title": "", "text": "of Eric M. Casper and Barbara Lundberg do not qualify as “affidavits” under Rule 56(e). Therefore, Plaintiff contends, these Declarations could not be used to authenticate the IRS Forms 4340 they purported to authenticate. Moreover, the Forms were not self-authenticating. Thus, since there was no admissible evidence for the bankruptcy court to consider, Plaintiff concludes that summary judgment was improvidently granted. Defendant responds by arguing that the declarations made by Casper and Lundberg, signed under penalty of perjury, are tantamount to “affidavits” under Rule 56(e), and were appropriately considered by the bankruptcy court. Moreover, the IRS Forms 4340 are self-authenticating public records, and are admissible even without a supporting affidavit or declaration. Thus, Defendant concludes that the bankruptcy court appropriately considered this evidence and properly granted summary judgment. 2.Standard of Review The granting of summary judgment is reviewed de novo. In re United Energy Corp., 102 B.R. 757 (9th Cir.1989). 3.Discussion The Court rejects Plaintiffs argument for two reasons. First, in support of his argument that an unsworn declaration does not meet the requirements of Rule 56(e), Plaintiff refers the Court to Local Union No. 490, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO v. Kirkhill Rubber Co., 367 F.2d 956, 958 (9th Cir.1966). That case, however, was decided before the enactment of 28 U.S.C. § 1746 in 1976. § 1746 provides that an unsworn declaration that is signed under penalty of perjury and dated has the same force and effect as an affidavit. The declarations of Casper and Lundberg were dated and signed under penalty of perjury, and therefore satisfy the requirements of Rule 56(e). See Knight v. United States, 845 F.Supp. 1372 (D.Ariz.1993). Thus, the bankruptcy court appropriately considered the declarations. Moreover, the 9th Circuit has held that IRS Forms 4340 are self-authenticating public records. Hughes v. United States, 953 F.2d 531, 540 (9th Cir.1992). Therefore, whether the Forms 4340 are considered self-authenticating or were authenticated by the declarations, the Forms were appropriately considered for summary judgment purposes. Finally, the Court concludes that the granting of summary judgment was proper. Plaintiff offered no controverting evidence that" }, { "docid": "4321150", "title": "", "text": "local rule to work to their benefit. However, they overlook the fact that the rule places restrictions only upon them, the movants. The rule certainly does not purport to impose any additional restrictions upon the pro se plaintiff, nor does it obligate the court to accept as true the factual assertions in the movant’s affidavits. The purpose of the rule is simply to ensure that the movant informs the pro se nonmovant of the potential consequences of a failure to proffer the eviden-tiary materials called for by Rule 56(e). More significantly, the defendants have also overlooked the effect of 28 U.S.C. § 1746. When a pro se plaintiff has declared in his form complaint under penalty of perjury that, among other things, the factual allegations contained in his statement of claim are true and correct, as called for by 28 U.S.C. § 1746, he ostensibly faces criminal prosecution for perjury should it be proved that he willfully or knowingly made material statements that are false, see 18 U.S.C. §§ 1621, 1623. In return, the statute extends a benefit: the factual allegations of the pro se form complaint must be endowed with the evidentia-ry force of an affidavit. See 28 U.S.C. § 1746 (“Wherever, ... under any rule ... made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the ... affidavit, in writing of the person making the same, such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, ... in writing of such person which is subscribed by him, as true under penalty of perjury”). In other words, when a pro se plaintiff properly executes such a form complaint, which calls for a declaration in conformity with 28 U.S.C. § 1746, the plaintiff’s statement of claim is transformed from “mere allegations” of a pleading into “specific facts” as in an evidentiary affidavit. See, e.g., McElyea v. Babbitt, 833 F.2d 196, 197-98 & n. 1 (9th Cir.1987) (per curiam); Reese v. Sparks, 760 F.2d 64, 67 & n. 3 (3d Cir.1985); Murrell v. Bennett," }, { "docid": "22837692", "title": "", "text": "court considered the statements strictly to determine the effect that they would have upon the arresting officers when communicated to them by a presumptively reliable citizen. Thus, the district court did not run afoul of the prohibition on hearsay by considering these documents for this limited purpose. B. Woods’ “affidavit” argument Woods also argues that the district court should not have considered the arrest report and the misdemeanor complaint because they did not qualify as admissible “affidavits” under 28 U.S.C. § 1746 and Fed.R.Civ.P. 56(e). Rule 56(e) authorizes parties to submit affidavits supporting or opposing a motion for summary judgment, but it specifically mandates that such affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Moreover, 28 U.S.C. § 1746 provides, in relevant part, that “[wjherever, under any law of the United States or under any rule ... made pursuant to law, any matter is required or permitted to be supported ... by ... affidavit, such matter may, with like force and effect, be supported ... by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury ...” (emphasis added). Woods contends that the misdemeanor complaint and the arrest report were not “affidavits” as contemplated by 28 U.S.C. § 1746 because, while they were purportedly sworn by Flores and officer Makowski (respectively), neither document contained the “penalty of perjury” language as required by that section. Moreover, Woods maintains that even if officer Makowski’s signed declaration on the arrest report were sufficient to transform that document into an “affidavit,” the report would still be inadmissible under Fed.R.Civ.P. 56(e) because it contained statements made by Flores regarding matters not within Makowski’s personal knowledge. Woods’ arguments are unpersuasive. First, while Fed.R.Civ.P. 56(e) allows a party to submit affidavits in support of its summary judgment motion, it does not require that all supporting material be submitted in affidavit form. See Fed.R.Civ.P. 56(b) (permitting a party to" }, { "docid": "4834040", "title": "", "text": "court’s exclusion of a declaration submitted by Dr. Jajeh as Exhibit 1 with his response to Cook County’s motion for summary judgment. In this declaration, Dr. Jajeh described Dr. Catchatourian’s derogatory comments that lie at the heart of his hostile-work-environment claim. The court excluded the declaration because it was unsworn, and not subscribed “under penalty of perjury,” as required by 28 U.S.C. § 1746. Dr. Jajeh argues that the district court erred by not considering the declaration because, in doing so, the court relied on our precedent holding that an unsworn declaration does not comply with (now former) Federal Rule of Civil Procedure 56(e). E.g., DeBruyne v. Equitable Life Assurance Soc’y, 920 F.2d 457, 471 (7th Cir.1990) (unsworn affidavit not subscribed under penalty of perjury was not within range of evidence that district court could consider); Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir.1990) (unsworn affidavits not subscribed under penalty of perjury did not comply with Rule 56(e)). In 2010, Rule 56 was reorganized and altered. “Subdivision (c)(4) carries forward some of the provisions of former subdivision (e)(1). Other provisions are relocated or omitted.” Fed.R.Civ.P. 56, advisory committee’s note (2010 amends.). Rule 56(c)(4) no longer requires a formal affidavit to be submitted, but instead allows a declaration to be used to oppose a motion for summary judgment, so long as it is “made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.” Dr. Jajeh contends that his unsworn declaration complies with subdivision (c)(4), even if it would not have complied with former Rule 56(e) and does not comply with 28 U.S.C. § 1746. Although we have not had occasion to address this issue, we need not decide whether Dr. Jajeh’s declaration complies with Rule 56(c)(4); “we may affirm on any ground supported in the record.” Bd. of Regents of Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448, 456 (7th Cir.2011). Even assuming that the declaration was properly before the district court, the" }, { "docid": "16879507", "title": "", "text": "2(b) of the Rules Governing § 2255 Proceedings. And, in fact, every district court within this circuit’s jurisdiction has a requirement that an affidavit, or at least a certification with the “force and effect” of an affidavit, accompany the § 2255 petition. That is, when a petition contains language to the effect of that set forth in 28 U.S.C. § 1746(2), “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct,” such petition, and the deelaration(s) submitted along with it, are tantamount to affidavits. See Williams v. Browman, 981 F.2d 901, 905 (6th Cir.1992) (“[W]e believe that the stated purpose of 28 U.S.C. § 1746 is accomplished whether the verification statement is handwritten or typewritten and simply undersigned. Therefore, a verified complaint in either form would have the same force and effect as an affidavit_”) (emphasis added). Each and every federal district court within this circuit has chosen to exercise its authority under Rule 2(b), supra, and require petitioners to file § 2255 petitions that include the exact language of 28 U.S.C. § 1746(2), namely, “I declare under penalty of perjury that the foregoing is true and correct. Executed on (date).” It is thus a circuit-wide rule that § 2255 petitions must be accompanied by an affidavit. It is likewise evident that Prewitt’s affidavit requirement is in accord with the habeas statute. The Prewitt case dealt with the § 2255 petition of a convicted criminal in search of habeas relief alleging that the government intentionally delayed seeking an indictment against him in order to deprive him of the benefit of § 5G1.3(c) of the Sentencing Guidelines and, in turn, a shorter sentence. This court held that Prewitt’s petition was deficient in that he “has provided only allegations, rather than proof, of intentional delay. Suppositions about memoranda between investigators and prosecutors ... cannot cairy the day, as conclusory allegations do not suffice.” Prewitt, 83 F.3d at 819-20 (emphasis added) (citing United States v. Canoy, 38 F.3d 893, 902 (7th Cir.1994)). Restated, Prewitt failed to submit objective (actual) evidence of the government’s intentional delay" } ]

[ { "docid": "17315281", "title": "", "text": "must make a misrepresentation does not mean that the defendant must communicate that misrepresentation directly to the plaintiff. Rather, where the defendant has made a misstatement but used another actor to deliver the message, the defendant still may be liable as a primary violator. In such circumstances, it was the defendant’s original statement which misled investors — the person who communicated the statement to investors served as a mere conduit for the defendant’s statement. Thus, if plaintiffs can show that defendants were the original and knowing source of a misrepresentation and that defendants knew or should have known that misrepresentation would be communicated to investors, primary liability should attach. Id. at 407 (quotation marks and citations omitted). First, as explained above, the contrast between paragraphs 12 and 16 cast doubt on whether SDI was the original and knowing source of the misrepresentations. In Kidder Peabody, there was no dispute that the defendants were the original and knowing source of the misstatements. See id. at 407. Second, the Amended Complaint does not plead facts leading to the conclusion that NatWest and McDonald were “mere conduits” for SDI. Cf. id. (“Also undisputed is that GE’s role in disseminating this information was limited to serving as a conduit.... When GE opened its mouth regarding Kidder, Kidder’s words came out.”). At most, the Amended Complaint alleges that SDI knew that NatWest and McDonald would make misrepresentations to plaintiffs about its role in the Mini-Mill. What the Amended Complaint fails to allege is that the misrepresentations communicated to the plaintiffs by NatWest and McDonald were SDI’s misrepresentations. Cf. Cooper v. Pickett, 137 F.3d 616, 624 (9th Cir.1997) (“Merisel is alleged to have made misleading statements to the analysts with the intent that the analysts communicate those statements to the market. This is not aiding and abetting or secondary liability; the complaint alleges that Merisel is hable for its own false statements to the analysts.”); see also S.E.C. v. First Jersey Securities, Inc., 101 F.3d 1450, 1471-72 (2d Cir.1996) (owner of securities firm liable as primary violator where “illegal activity could only have occurred at the" } ]

[ { "docid": "2385428", "title": "", "text": "communicate misrepresentations to plaintiffs for primary liability to attach”); Picard Chem. Inc. Profit Sharing Plan v. Pertigo Co., 940 F.Supp. 1101, 1120 (W.D.Mich.1996); see also SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1471 (2d Cir.1996) (“Primary liability may be imposed not only on persons who made fraudulent representations but also on those who had knowledge of the fraud and assisted in its preparation.” (internal quotation marks and citation omitted)), cert. denied, — U.S. -, 118 S.Ct. 57, 139 L.Ed.2d 21 (1997); In re MTC Elec. Techs. Shareholder Litig., 993 F.Supp. 160, 162 (E.D.N.Y.1997) (citing Chris-Craft Indus., Inc. v. Piper Aircraft Corp., 480 F.2d 341, 370 (2d Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 231 (1973)); In re ICN/Viratek Sec. Litig., 1996 WL 164732, at *6-7 (S.D.N.Y.1996) (company may be primarily liable for statements made by analyst where company so entangled itself with statement that statement could be properly attributed to company). Rather, where the defendant has made a misstatement but used another actor to deliver the message, the defendant still may be liable as a primary violator. See Pertigo Co., 940 F.Supp. at 1120. “In such circumstances, it was the defendant’s original statement which misled investors — the person who communicated the statement to investors served as a mere conduit for [the] defendant’s statement.” Id. Thus, if plaintiffs can show that defendants were the original and knowing source of a misrepresentation and that defendants knew or should have known that misrepresentation would be communicated to investors, primary liability should attach. See Anixter, 77 F.3d at 1226; Pertigo Co., 940 F.Supp. at 1120. Here, plaintiffs allege that defendants were the “original and knowing source” of the alleged misrepresentations of Kidder’s earnings, which were conveyed to investors by GE in public filings, reports and press releases. There is no dispute that Kidder provided GE with financial data on a quarterly basis and that that data was incorporated in GECS’s financial statements and GE’s quarterly and annual reports. See Stipulation and Order dated September 16, 1997, submitted as Plaintiffs’ Ex. 183, ¶¶ 3-6. As a subsidiary of GE, and as" }, { "docid": "22811964", "title": "", "text": "claims against some of the defendant banks for aiding and abetting Schick’s breach of fiduciary duty. “A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach.” Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d at 169; accord In re Sharp Int’l Corp., 403 F.3d 43, 49 (2d Cir.2005); see also Wechsler v. Bowman, 285 N.Y. 284, 291, 34 N.E.2d 322, 326 (1941) (“Any one who knowingly participates with a fiduciary in a breach of trust is liable for the full amount of the damage caused thereby to the cestuis que trust.”). With respect to the second requirement, “[although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty.” Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d at 169. And “[a] person knowingly participates in a breach of fiduciary duty only when he or she provides ‘substantial assistance’ to the primary violator.” Id. at 126, 760 N.Y.S.2d at 170. The complaint alleges that “each defendant had actual knowledge that Schick and his law firms violated their fiduciary duties to some or all of the plaintiffs, inter alia, by reason of the fact that Schick Attorney Fiduciary Accounts were overdrawn; numerous checks written on Schick Attorney Fiduciary Accounts were dishonored for insufficient funds; and Schick on numerous occasions ... transferred funds from the Schick Attorney Fiduciary Accounts to his personal account(s).” Second Am. Compl. ¶ 303. As discussed above, these “red flags,” as alleged, were insufficient to establish a claim for aiding and abetting fraud because, although they may have put the banks on notice that some impropriety may have been taking place, those alleged facts do not create a strong inference of actual knowledge of Schick’s outright theft of client funds. But the claim for aiding and abetting a breach of fiduciary duty does not" }, { "docid": "232451", "title": "", "text": "& Rubin, P.C., 202 A.D.2d 351, 351-52, 609 N.Y.S.2d 230, 231 (1st Dep’t 1994)). A plaintiff must allege that “the defendant had actual knowledge of the primary violator’s status as a fiduciary and actual knowledge that the primary violator’s conduct contravened a fiduciary duty.” Goldin Assocs., L.L.C. v. Donaldson, Lufkin & Jenrette Sec. Corp., No. 00 Civ. 8688(WHP), 2003 WL 22218643 at *8 (S.D.N.Y. Sept. 25, 2003) (citing A.I.A. Holdings, S.A. v. Lehman Bros., Inc., No 97 Civ. 4978(LLM), 2002 WL 88226 at *12 (S.D.N.Y. Jan. 23, 2002) and Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157, 169-70 (1st Dep’t 2003)). An entity “knowingly participates in a breach of fiduciary duty only when it provides substantial assistance to the primary violator.” Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157 (1st Dep’t 2003) (internal quotations and citations omitted). “[Allegations of aiding and abetting liability must meet the particular requirements of Fed.R.Civ.P 9(b)” with respect to primary violations based on fraud. Kolbeck, 939 F.Supp. at 245; see also supra Section II.C. 1. Breach by a Fiduciary of Obligations to Another The first element of aiding and abetting breach of fiduciary duty is the breach by a fiduciary of obligations to another party. See Kolbeck, 939 F.Supp. at 245. Plaintiffs invested the money in Bank of Europe with the written promise of a profitable return. (FAC ¶¶6, 40-130, 150.) This created a duty for Bank of Europe to act for the benefit of the Plaintiffs within the scope of the promises. See Pension Comm., 446 F.Supp.2d at 195-96 (defendant which held itself out to investors as having policies and procedures of fairness on which plaintiffs relied upon was found to have a fiduciary duty). Furthermore, through Bank of Europe, “Ferreira stole ... Plaintiffs’ money” and spent it. (FAC ¶¶ 7, 8, 159.) This was a breach of Bank of Europe’s fiduciary obligations to each plaintiff. Taken as true, these breaches of fiduciary duties owed to Plaintiffs by Bank of Europe satisfy the first element, for both Standard Chartered and BOA. 2. Actual Knowing Participation The second element is actual knowing" }, { "docid": "21724439", "title": "", "text": "duty only when he or she provides ‘substantial assistance’ to the primary violator.” Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d 157. Substantial assistance may only be found where the alleged aider and abettor “affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur.” See id. “[T]he mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff.” Id.; see also Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 284 (2d Cir.1992) (under federal law, “[o]ne participates in a fiduciary’s breach if he or she affirmatively assists, helps conceal, or by virtue of failing to act when required to do so enables it to proceed”), abrogated on other grounds as noted in Gerosa v. Savasta & Co., 329 F.3d 317, 319 (2d Cir.2003). Since Sharp does not contend that State Street owed Sharp a fiduciary duty, Sharp must allege that State Street committed affirmative acts that furthered the Spitzes’ breaches of fiduciary duty to Sharp and caused Sharp the $19 million loss. The complaint cites five acts by State Street that are alleged to satisfy these standards; we consider these acts in turn. Ultimately, we conclude that the complaint says no more than that State Street relied on its own wits and resources to extricate itself from peril, without warning persons it had no duty to warn. Sharp first alleges that after learning about the Spitzes’ fraud, State Street demanded that Sharp obtain new sources of financing to retire the State Street debt: State Street demanded and obtained Sharp’s agreement to secure new financing from investors unaware of the fraud, and to use that financing to pay off State Street’s line of credit. In exchange, State Street agreed to give Sharp until March 31, 1999 to obtain this new financing and to retire the State Street debt. Compl. ¶ 50. This allegation cannot be characterized as either participation or substantial assistance. Therefore, this allegation assists Sharp only if it qualifies as an inducement. No doubt, a request for" }, { "docid": "16415418", "title": "", "text": "Internal Policies and industry standards. Am. Compl. ¶ 171. Out of these sixteen specific instances, at least eight ((a), (b), (d), (e), (f), (g), (i), and (o)) consist of nothing more than a failure to act. Under limited circumstances, courts have held that inaction can form the basis of aiding and abetting liability if it rises to the level of providing substantial assistance. Matthews v. Eichorn Motors, Inc., 800 N.W.2d 823, 831 (Minn.Ct.App.2011). However, “state and federal courts generally have held that a defendant’s failure to act does not constitute ‘substantial assistance.’ ” Id.; see also, Sharp Int’l Corp. v. State Street Bank and Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 49 (2d Cir.2005) (internal citation marks omitted) (quoting Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 170 (2003)); Hines v. Fi-Serv, Inc., No. 8:08-cv-2569-T-30AEP, 2010 WL 1249838, at *4 (M.D.Fla. Mar. 25, 2010). The Court finds that these allegations, which amount to nothing more than inaction, do not rise to level of substantial assistance and thus cannot provide the basis for aiding and abetting liability. The remaining allegations, even when taken together, do not amount to “substantial assistance.” Substantial assistance requires an affirmative step on the part of the aider-and-abettor that is a “substantial factor” in causing the breach of duty. Varga v. U.S. Bank. Nat’l Ass’n, 952 F.Supp.2d 850, 859 (D.Minn.2013) (citing Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 463 (8th Cir.2013)). “To determine what constitutes substantial assistance, courts generally consider the five factors listed in the comments to section 876 of the Restatement (Second) of Torts.” Id. “Those factors are: the nature of the act encouraged, the amount of assistance given, the aider-and-abettor’s presence or absence at the time of the tort, its relation to the primary actor, and its state of mind.” Id. (citing In re Tempromandi-bular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1495 (8th Cir.1997)). Courts must also consider “the potentially devastating impact aiding and abetting liability might have on commercial relationships.” Id. Assuming it were true that GECC did every one of" }, { "docid": "17346781", "title": "", "text": "Cantor, 123 F.3d 717, 720 (2d Cir. 1997)). Because the auditors had not actually made a statement that Plaintiffs could have relied on, they could not be held liable under Section 10(b). Id. at 175 (“[A] secondary actor cannot incur primary liability under the Act for a statement not attributed to that actor at the time of its dissemination.”). By adopting this “bright line” rule requiring that the defendant “actually make a false or misleading statement,” the Second Circuit intended to avoid the circumvention of Central Bank. Id. The Court finds that Wright did not abrogate the rule followed in Kidder Peabody, and that a careful reading of the cases supports a finding that when a subsidiary provides false or misleading financial information to a parent, knowing that the information will be communicated to investors, it can be held liable for the statements made by the parent. Cf. Gabriel Capital, L.P. v. NatWest Fin., Inc., 94 F.Supp.2d 491, 508-510 (S.D.N.Y.2000) (analyzing plaintiffs claims in light of both Wright and Kidder Peabody, and conclud ing that plaintiffs’ claims should be dismissed because they had failed to allege that the defendant subsidiary was the source of the alleged misrepresentations). First, Wright does not foreclose the possibility of primary liability where the statement made was not communicated directly to the investor by the original source, but instead was communicated indirectly. See Wright, at 152 F.3d at 175 (recognizing that “[t]here is no requirement that the alleged violator directly communicate misrepresentations to [investors] for primary liability to attach”); see also Seippel v. Sidley, Austin, Brown & Wood, LLP, 399 F.Supp.2d 283, 294 (S.D.N.Y.2005) (‘Wright does not require that a defendant directly communicate the alleged misrepresentation to the plaintiff.”). Further, the Wright court sought to avoid holding Ernst & Young primarily liable “in spite of its clearly tangential role in the alleged fraud,” as this “would effectively revive aiding and abetting liability under a different name[.]” Wright, 152 F.3d at 175. In Kidder Peabody, there was no suggestion that the subsidiary had played a “tangential role” in the fraud. In fact, the subsidiary was the" }, { "docid": "16415417", "title": "", "text": "Demanding and accepting the entire Final Payment in an atypical and improper manner; (d) Retaining all unearned Success Fees, including the Final Success Fee; (e) Failing to disclose the Conspiracy to anyone, including but not limited to Pet-ters’ investors, law enforcement, or Costco; (f) Failing to take legal or other public action against Petters or Petters Capital; (g) Deferring any actions based on Pet-ters and Petters Capitals’ representations that GECC would get paid the Final Payment; (h) Releasing the Petters Capital stock pledge; (i) Failing to advise anyone about the Fraudulent Checks; (j) Communicating the January 30th Audit Letter Response; (k) Concealing the Fraudulent Checks from Ernst & Young; (l) Knowingly paving the way for the Palm Beach Funds to use the same SPE that GECC had used in its dealing with Petters; (m) Causing the termination of the GECC Financing Statement in 2003; (n) Authorizing Petters Capital to act as its agent for purposes of terminating the GECC Financing Statement; (o) Failing to make disclosures to applicable regulators; and (p) Violating its Integrity Policies, Internal Policies and industry standards. Am. Compl. ¶ 171. Out of these sixteen specific instances, at least eight ((a), (b), (d), (e), (f), (g), (i), and (o)) consist of nothing more than a failure to act. Under limited circumstances, courts have held that inaction can form the basis of aiding and abetting liability if it rises to the level of providing substantial assistance. Matthews v. Eichorn Motors, Inc., 800 N.W.2d 823, 831 (Minn.Ct.App.2011). However, “state and federal courts generally have held that a defendant’s failure to act does not constitute ‘substantial assistance.’ ” Id.; see also, Sharp Int’l Corp. v. State Street Bank and Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 49 (2d Cir.2005) (internal citation marks omitted) (quoting Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 170 (2003)); Hines v. Fi-Serv, Inc., No. 8:08-cv-2569-T-30AEP, 2010 WL 1249838, at *4 (M.D.Fla. Mar. 25, 2010). The Court finds that these allegations, which amount to nothing more than inaction, do not rise to level of substantial assistance and thus cannot provide the basis" }, { "docid": "2078604", "title": "", "text": "“makes a defendant a principal when he consciously shares in any criminal act.” Nye & Nissen v. United States, 386 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949) (emphasis added). That means that a conviction for aiding and abetting a crime requires at least “some knowledge of the proposed crime. A general suspicion that an unlawful act may occur is not enough.” United States v. Giraldo, 80 F.3d 667, 676 (2d Cir.1996) (citations omitted). It follows that the Restatement’s “roughly similar” doctrine of tortious aiding and abetting requires actual knowledge as well. See Consolidated Welfare Fund, 856 F.Supp. at 842 (interpreting § 876 of the Restatement to require actual knowledge). The requirement of “actual knowledge” is consistent also with the other elements of an aiding and abetting claim. A defendant may be held liable for “participating” in another’s breach of fiduciary duty only if the defendant provided “substantial assistance” to the primary violator. DePinto v. Ashley Scott, Inc., — A.D.2d -, 635 N.Y.S.2d 215, 217 (1st Dep’t 1995) (holding that allowing third party to use office space “does not rise to the level of ‘substantial assistance’ necessary to state a claim for aiding and abetting a breach of fiduciary duty.”). One provides substantial assistance if he “affirmatively assists, helps conceal, or by virtue of failing to act when required to do so enables it to proceed.” Diduck, 974 F.2d at 284. However, inaction constitutes substantial assistance only when an “independent duty to act was a duty owed to the defrauded investor.” Dillon v. Militar no, 731 F.Supp. 634, 639 (S.D.N.Y.1990); Stander v. Financial Clearing & Serve. Corp., 730 F.Supp. 1282, 1288 (S.D.N.Y.1990) (aiding and abetting a securities law violation). That is, inaction, or a failure to investigate, constitutes actionable participation only when a defendant owes a fiduciary duty directly to the plaintiff; that the primary violator owes a fiduciary duty to the plaintiff is not enough. See generally W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 46 at 323-24 (5th ed. 1984) (“Since there is ordinarily no duty to take affirmative" }, { "docid": "7479214", "title": "", "text": "dismiss, prior to discovery, a claim based on failure to specifically allege the absence of a model whose existence or non-existence only ACM can demonstrate. Accordingly, the fraud claim against ACM will not be dismissed. V. The Aiding and Abetting Fraud Claim Against the Brokers Will Not Be Dismissed To state a claim for aiding and abetting a common law fraud, a plaintiff must allege: (1) the existence of the primary fraud; (2) the aider and abettor’s knowledge of the fraud; and (3) substantial assistance by the aider and abettor. Tribune v. Purcigliotti, 869 F.Supp. 1076, 1100 (S.D.N.Y. 1994), aff'd, 66 F.3d 12 (2d Cir.1995). A claim of aiding and abetting fraud must meet the pleading requirements of Rule 9(b). Morin v. Trupin, 711 F.Supp. at 112 (S.D.N.Y.1989). The Brokers attempt to separate the fraud claim into independent claims of “fraudulent inducement” and “fraudulent maintenance.” The Brokers contend that the fraudulent inducement claim (i.e., the claim that the Investor’s were induced to make their initial purchase of securities by ACM’s misrepresentations) fails because Plaintiffs have not alleged that the Brokers provided substantial assistance by participating in the preparation or dissemination of the allegedly false statements. Defendants’ contentions, however, are insufficient to defeat Plaintiffs’ aiding and abetting fraud claim. It is true that where the primary fraud claim is predicated on misrepresentations in or omissions from documents, the substantial assistance of an unrelated third party must generally relate to the preparation or dissemination of the false statements themselves. Morin, 711 F.Supp. at 113. However, Plaintiffs here allege a highly interdependent scheme in which both parties benefitted from ACM’s fraudulent activity. In such circumstances, allegations that a defendant actively assisted and facilitated the fraudulent scheme itself, as opposed to assisting in the preparation of the documents themselves, are sufficient. See, e.g., Bruce v. Martin, No. 87 Civ. 7737, 1990 WL 52180 at *5 (S.D.N.Y. April 13, 1990). Moreover, even in the absence of a duty to act or disclose information, inaction on the alleged aider and abettor’s part can provide a basis for liability where the inaction was “designed intentionally to aid" }, { "docid": "4513308", "title": "", "text": "misconduct — does not constitute substantial assistance, unless the defendant owes a special duty directly to the plaintiff. “It is well settled that without an independent duty to disclose, mere inaction does not amount to substantial assistance for purposes of determining aider and abettor liability.” Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 494 (S.D.N.Y.2003) (citing National Westminster Bank USA v. Weksel, 124 A.D.2d 144, 511 N.Y.S.2d 626 (1st Dep’t 1987)). The existence of the primary violator’s duty is not sufficient to hold a non-fiduciary secondary actor liable for inaction on an aiding and abetting theory. Second, even without directly assisting in the commission of the underlying wrong, a defendant may still be liable as an aider and abetter for “inducing” or “encouraging” a fiduciary to breach his duties to another. See Kaufman, 760 N.Y.S.2d at 169 (holding that a claim for aiding and abetting a breach of fiduciary duty requires, inter alia, allegations that the defendant knowingly induced or participated in the breach) (emphasis added); Wight v. Bankamerica Corp., 219 F.3d 79, 91 (2d Cir.2000) (same); S & K Sales Co. v. Nike, 816 F.2d 843, 849 (2d Cir.1987). The Restatement (Second) of Torts explains that “[a]dvice or encouragement to act,” in instances where “the act encouraged is known to be tortious[,] ... has the same effect upon the liability of the advisor as participation or physical assistance.” Restatement (Second) of Torts § 876, comment “d”; see also Lindsay v. Lockwood, 163 Misc.2d 228, 233, 625 N.Y.S.2d 393, 397 (Sup.Ct. Monroe Co.1994) (“The archetypical aiding and abetting defendant is one who encourages another to commit a tor-tious act.”). In this case, Sharp contends that upon discovering the scheme in November 1998, State Street demanded that Sharp obtain new financing to retire its debt to State Street — financing which could only be obtained by expanding the scope of the fraud on the Noteholders, and which led to an infusion of fresh money to fund the Sptizes’ continued looting. Sharp further asserts that State Street affirmatively assisted the expanded fraud in three respects: first, instead of immediately foreclosing, State Street provided" }, { "docid": "22842906", "title": "", "text": "Rule 10b-5 claim. Under New York law, justifiable reliance is an element of both common-law fraud and negligent misrepresentation. See, e.g., Keywell Corp. v. Weinstein, 33 F.3d 159 (2d Cir.1994); Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir.1991). The same is true under California law. See McGonigle v. Combs, 968 F.2d 810, 817 (9th Cir.), cert. dismissed, Casares v. Spendthrift Farm, Inc., 506 U.S. 948, 113 S.Ct. 399, 121 L.Ed.2d 325 (1992). As discussed above, the Investors have not raised an issue of material fact as to their reliance on either GE Capital or Burton. Therefore, the Investors’ common-law claims must fail as well. The Investors attempt to recast their common-law cause of action as a claim that GE Capital and Burton were liable for aiding and abetting Casablanca’s common-law fraud. Under New York law, aiding and abetting fraud requires a showing that the defendant “knew or intended to aid” the commission of a fraud. National Westminster Bank USA v. Weksel, 124 A.D.2d 144, 511 N.Y.S.2d 626, 629 (N.Y.App.Div.), appeal denied, 70 N.Y.2d 604, 519 N.Y.S.2d 1027, 513 N.E.2d 1307 (1987). Mere inaction is not enough to support aider and abettor liability. See id. As the Investors have not shown that GE Capital or Burton took positive steps to advance any alleged fraud by Casablanca, the Investors’ new spin on their common-law claims does not save them either. Ill The Investors claim that GE Capital and Burton are secondarily liable for Casablanca’s alleged Rule 10b-5 violations because they were “controlling persons” of Casablanca under section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a). Section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. To establish" }, { "docid": "18991835", "title": "", "text": "Michael and Ariel aided and abetted Fanny’s breach of fiduciary duty. (Pl.’s Mem. Opp’n 11.) To state a claim for aiding and abetting a breach of fiduciary duty under New York law, plaintiff must allege (1) a breach by a fiduciary of obligations to another, (2) defendant’s knowing inducement of or participation in the breach, and (3) that the plaintiff suffered damages as a result of the breach. See Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 134 (2d Cir.2008); Whitney, 782 F.2d at 1115; see also Ackerman v. Nat’l Prop. Analysts, Inc., 887 F.Supp. 494, 508 (S.D.N.Y.1992) (“To state a claim for aiding and abetting a breach of fiduciary duty, plaintiffs must demonstrate an underlying breach of fiduciary duty, knowledge of that breach by the aider and abettor, substantial assistance by the aider and abettor in the success of the main breach, and a connection between a plaintiffs injury and an aider and abettor’s conduct.” (citations omitted)). To participate knowingly means to have “[ajctual knowledge, as opposed to merely constructive knowledge, ... and a plaintiff may not merely rely on conclusory and sparse allegations that the aider or abettor knew or should have known about the primary breach of fiduciary duty.” Global Minerals & Metals Corp. v. Holme, 35 A.D.3d 93, 101-02, 824 N.Y.S.2d 210, 217 (N.Y.App.Div.2006) (citation omitted). The aider and abettor must also provide substantial assistance to the primary violator. Kaufman v. Cohen, 307 A.D.2d 113, 126, 760 N.Y.S.2d 157, 170 (N.Y.App.Div.2003). Under New York law, “[s]ubstantial assistance may only be found where the alleged aider and abettor ‘affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur.’ ” Sharp Int’l Corp. v. State St. Bank and Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 50 (2d Cir.2005) (quoting Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170). Inaction constitutes substantial assistance only where the alleged aider and abettor owes a fiduciary duty directly to the plaintiff. Id.; see Kolbeck II, 939 F.Supp. at 247; Global Minerals, 35 A.D.3d at 101-02, 824 N.Y.S.2d" }, { "docid": "8777090", "title": "", "text": "the subject presented at trial. Finally, amending the pleadings to conform to the evidence at trial in this manner adds no new issues to the case because the same set of facts involved in deciding this claim also arise under Plaintiffs’ tortious interference with prospective economic advantage claim asserted against both Lee and Baynard. The Court, therefore, deems the Complaint to be amended, nunc pro tunc, to conform to the proof in this case. B. Legal Standard Under New York law, a plaintiff seeking to establish a cause of action for aiding and abetting a breach of fiduciary duty must show: (1) the existence of a violation by the primary (as opposed to the aiding and abetting) party; (2) knowledge of this violation on the part of the aider and abettor; and (3) plaintiff suffered actual damages as a result of the breach. See In re Sharp Int'l. Corp., 403 F.3d 43, 49 (2d Cir.2005) (citing Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 169 (2003)). A person knowingly participates in a breach of fiduciary duty when she provides “substantial assistance” to the primary violator. See Lerner v. Fleet Bank, N.A., 459 F.3d 273, 294 (2d Cir.2006); see also Kaufman, 760 N.Y.S.2d at 170. “Substantial assistance may only be found where the alleged aider and abettor ‘affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur. The mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff.’ ” In re Sharp, 403 F.3d at 50 (quoting Kaufman, 760 N.Y.S.2d at 157 (additional internal citations omitted)). One who “knowingly participate[s]” in another’s breach of fiduciary duty is jointly and severally liable for all compensatory damages caused by the breach. See Banco De Desarrollo Agropecuario, S.A v. Gibbs, 709 F.Supp. 1302, 1307 (S.D.N.Y.1989); see also Wechsler v. Bowman, 285 N.Y. 284, 291, 34 N.E.2d 322, 326 (1941) (“Anyone who knowingly participates with a fiduciary in a breach of trust is liable for the full amount of the damage caused" }, { "docid": "2078605", "title": "", "text": "party to use office space “does not rise to the level of ‘substantial assistance’ necessary to state a claim for aiding and abetting a breach of fiduciary duty.”). One provides substantial assistance if he “affirmatively assists, helps conceal, or by virtue of failing to act when required to do so enables it to proceed.” Diduck, 974 F.2d at 284. However, inaction constitutes substantial assistance only when an “independent duty to act was a duty owed to the defrauded investor.” Dillon v. Militar no, 731 F.Supp. 634, 639 (S.D.N.Y.1990); Stander v. Financial Clearing & Serve. Corp., 730 F.Supp. 1282, 1288 (S.D.N.Y.1990) (aiding and abetting a securities law violation). That is, inaction, or a failure to investigate, constitutes actionable participation only when a defendant owes a fiduciary duty directly to the plaintiff; that the primary violator owes a fiduciary duty to the plaintiff is not enough. See generally W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 46 at 323-24 (5th ed. 1984) (“Since there is ordinarily no duty to take affirmative steps to interfere, mere presence at the commission of the wrong ... is not enough to charge one with responsibility.”). To hold all defendants to a standard of constructive knowledge and subject to a duty of inquiry would mean that all defendants, regardless of their independent obligations to plaintiff, could be liable for inaction. That result is contrary to the law of substantial assistance and confirms that a failure to investigate, i.e., constructive knowledge, is not enough to support a claim for aiding and abetting a fiduciary duty absent the existence of a fiduciary duty running from defendant to plaintiff. Plaintiffs rely principally on the OSC in the Gunther action to show that defendant Refco knew Sehindler was looting plaintiffs’ funds. Because the OSC alleged that Schindler had stolen from Gunther’s Refco account, and because that OSC initially was issued, plaintiffs urge, defendants knew of Schindler’s breach of fiduciary duty. The OSC told Refco only that one of Schindler’s clients, who is not one of the plaintiffs here, charged Schindler with fraud. And upon further" }, { "docid": "9352296", "title": "", "text": "id. at 558; IIT v. Cornfeld, 619 F.2d 909 (2d Cir.1980). The complaint thus offers defendants adequate information to frame a response. Ross, 607 F.2d at 558. 2. Aiding and Abetting Liability The requirements for establishing aiding and abetting liability in this Circuit are well settled. Plaintiff must prove (1) a securities law violation by the primary wrongdoer; (2) knowledge of the purported violation on the part of the aider and abettor; and (3) conduct by the aider and abettor constituting substantial assistance in achieving the primary wrongdoer’s fraud. Armstrong v. McAlpin, 699 F.2d 79, 91 (2d Cir.1983). The Banking Parties, Northwestern, and Peat Marwick have moved to dismiss Investors’ first cause of action which asserts that those defendants violated section 10(b) by aiding and abetting the primary fraud of the GRI and Broker Parties. Pointing out that the complaint alleges merely that they acted recklessly, the Banking Parties first assert that the complaint is defective because it does not allege they acted with the requisite scienter. The banks argue that by reason of their nonfiduciary relationship to plaintiffs and what they term the “routine services” rendered plaintiffs, the Investors must allege, not recklessness, but that defendants intended to violate the securities laws. See, e.g., Armstrong, 699 F.2d at 91 (where there is no fiduciary duty, the assistance rendered must be knowing and substantial). However, the banks have failed to acknowledge the significance of the fact that in addition to pleading recklessness, the Investors also alleged in Paragraph 90 of the Consolidated Complaint that defendants “knew or should have known” of the fraud alleged. See also Consolidated Complaint ¶ 78. Combined with Investors’ allegations of misrepresentations and omissions by the GRI and Broker Parties, this allegation of “knowledge” is sufficient as a matter of pleading to survive this motion to dismiss. See Chemical Bank v. Arthur Andersen & Co., 552 F.Supp. 439 (S.D.N.Y.1982), rev’d on other grounds, 726 F.2d 930 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984); IIT, 619 F.2d at 923-24. Furthermore, the additional clause “should have known” does not change this" }, { "docid": "4513307", "title": "", "text": "a reasonable jury to infer that State Street, a sophisticated commercial bank, actually knew — at least as of mid-November 1998 — of a unitary fraud at Sharp, consisting of the fraudulent reporting of the company’s accounts receivable in order to raise money to fund the looting of the corporation by corrupt management. Participation The “knowing participation” element of the aiding and abetting claim requires more than a defendant’s knowledge of the primary violation. To state a claim, a plaintiff must allege some form of participation by the alleged aider and abetter in the primary wrongdoing. Broadly speaking, the case law identifies two forms of actionable “participation.” First, aiding and abetting liability can attach where a defendant provides substantial assistance to the primary wrongdoer. “One provides substantial assistance if he affirmatively assists, helps conceal, or by virtue of failing to act when required to do so enables a [breach of fiduciary duty] to proceed.” Kolbeck, 939 F.Supp. at 247. In general, inaction — e.g., a failure to investigate or to alert third parties about another’s misconduct — does not constitute substantial assistance, unless the defendant owes a special duty directly to the plaintiff. “It is well settled that without an independent duty to disclose, mere inaction does not amount to substantial assistance for purposes of determining aider and abettor liability.” Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 494 (S.D.N.Y.2003) (citing National Westminster Bank USA v. Weksel, 124 A.D.2d 144, 511 N.Y.S.2d 626 (1st Dep’t 1987)). The existence of the primary violator’s duty is not sufficient to hold a non-fiduciary secondary actor liable for inaction on an aiding and abetting theory. Second, even without directly assisting in the commission of the underlying wrong, a defendant may still be liable as an aider and abetter for “inducing” or “encouraging” a fiduciary to breach his duties to another. See Kaufman, 760 N.Y.S.2d at 169 (holding that a claim for aiding and abetting a breach of fiduciary duty requires, inter alia, allegations that the defendant knowingly induced or participated in the breach) (emphasis added); Wight v. Bankamerica Corp., 219 F.3d 79, 91 (2d Cir.2000)" }, { "docid": "22811967", "title": "", "text": "However, the mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff.” Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170; see also Sharp, 403 F.3d at 50-51. The defendants argue that they could not have given “substantial assistance” if they did no more than passively fail to report Schick’s bounced checks because they owed no independent fiduciary duty to Schick’s clients. But as discussed above with regard to the plaintiffs’ negligence claim, banks do have a duty to safeguard trust funds deposited with them when confronted with clear evidence indicating that those funds are being mishandled. “Neither a large bank nor a small bank may urge that it is ignorant of facts clearly disclosed in the transactions of its customers with the bank ... nor may a bank close its eyes to the clear implications of such facts.” Grace, 287 N.Y. at 107, 38 N.E.2d at 454. As in Bischojf, the plaintiffs here allege that the banks had sufficient information to place them “under the duty to make reasonable inquiry and endeavor to prevent a diversion.” Bischoff, 218 N.Y. at 114, 112 N.E. at 761. The rule that liability for aiding and abetting is limited to those with a duty to disclose is based on the common-law principle that “since there is ordinarily no duty to take affirmative steps to interfere, mere presence at the commission of the wrong ... is not enough to charge one with responsibility.” W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 46 at 323-24 (5th ed.1984); see Kolbeck, 939 F.Supp. at 247 (incorporating the common-law requirement into the test for aiding and abetting breach of fiduciary duty). We think that the duty “to prevent a diversion” described in Bischojf and Home Savings — whether or not it is specifically designated as a “fiduciary” duty — encompasses such a duty to interfere as that contemplated by the First Department in Kaufman. Because of their duty to prevent a diversion, the defendant banks in this case stand" }, { "docid": "8777091", "title": "", "text": "fiduciary duty when she provides “substantial assistance” to the primary violator. See Lerner v. Fleet Bank, N.A., 459 F.3d 273, 294 (2d Cir.2006); see also Kaufman, 760 N.Y.S.2d at 170. “Substantial assistance may only be found where the alleged aider and abettor ‘affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur. The mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff.’ ” In re Sharp, 403 F.3d at 50 (quoting Kaufman, 760 N.Y.S.2d at 157 (additional internal citations omitted)). One who “knowingly participate[s]” in another’s breach of fiduciary duty is jointly and severally liable for all compensatory damages caused by the breach. See Banco De Desarrollo Agropecuario, S.A v. Gibbs, 709 F.Supp. 1302, 1307 (S.D.N.Y.1989); see also Wechsler v. Bowman, 285 N.Y. 284, 291, 34 N.E.2d 322, 326 (1941) (“Anyone who knowingly participates with a fiduciary in a breach of trust is liable for the full amount of the damage caused thereby to the cestuis que trust.”). Liability for punitive damages, however, is several only. See Rodick v. City of Schenectady, 1 F.3d 1341, 1349 (2d Cir.1993); see also Felice v. Delporte, 136 A.D.2d 913, 914, 524 N.Y.S.2d 919, 920 (4th Dep’t 1988) (“[T]rial court erred in adjudging that defendants were jointly and severally liable for the full amount of the punitive damage award. Such damages are in the nature of a penalty and contribution among tortfeasors is not permissible.”); Staudacher v. City of Buffalo, 155 A.D.2d 956, 956, 547 N.Y.S.2d 770, 771 (4th Dep’t 1989) (holding that a lump sum verdict on punitive damages against all defendants was “improper since there can be no joint and several liability or contribution”). C. Application The Court concludes that the preponderance of the evidence establishes that only Lee, knowingly and willfully, provided substantial assistance to Belliard and Fell in their breaches of their duty of loyalty to Pure Power. 1. Lee Belliard provided Lee with the materials that he stole from Pure Power, including Pure Power’s business plan," }, { "docid": "18991836", "title": "", "text": "... and a plaintiff may not merely rely on conclusory and sparse allegations that the aider or abettor knew or should have known about the primary breach of fiduciary duty.” Global Minerals & Metals Corp. v. Holme, 35 A.D.3d 93, 101-02, 824 N.Y.S.2d 210, 217 (N.Y.App.Div.2006) (citation omitted). The aider and abettor must also provide substantial assistance to the primary violator. Kaufman v. Cohen, 307 A.D.2d 113, 126, 760 N.Y.S.2d 157, 170 (N.Y.App.Div.2003). Under New York law, “[s]ubstantial assistance may only be found where the alleged aider and abettor ‘affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur.’ ” Sharp Int’l Corp. v. State St. Bank and Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 50 (2d Cir.2005) (quoting Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170). Inaction constitutes substantial assistance only where the alleged aider and abettor owes a fiduciary duty directly to the plaintiff. Id.; see Kolbeck II, 939 F.Supp. at 247; Global Minerals, 35 A.D.3d at 101-02, 824 N.Y.S.2d at 217. “To analyze a claim of secondary liability, the court first must determine the contours of the primary violation on which the secondary liability is alleged to be based.” Kolbeck II, 939 F.Supp. at 245. 2. Application As a predicate consideration, finding a breach of fiduciary duty requires finding that a fiduciary relationship existed between the parties. See Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 599 (2d Cir.1991). With regard to plaintiffs claim that defendants breached a fiduciary duty to him, the complaint identifies the source of Fanny’s duty to plaintiff as her a general partnership interest, and the source of Michael’s and Ariel’s duty to plaintiff as their role as agents of the general partner. (Compl. ¶ 64.) Plaintiff correctly states that Fanny owed him a duty because partners owe fiduciary duties to other partners. See Birnbaum, 73 N.Y.2d at 465, 541 N.Y.S.2d 746, 539 N.E.2d at 575; see also Blue Chip Emerald LLC v. Allied Partners Inc., 299 A.D.2d 278, 279, 750 N.Y.S.2d 291, 294 (N.Y.App.Div.2002) (stating managing" }, { "docid": "21724438", "title": "", "text": "the damages claimed by Sharp are premised and calculated on the $19 million that the Spitzes looted from Sharp, not then-fraudulent borrowing on Sharp’s behalf. See Compl. ¶58 (“Between November 1998, when State Street discovered the Sharp fraud, and October 1999, when [the trustee in bankruptcy] took over management of Sharp, the Spitzes looted Sharp of more than $19 million .... ”). Therefore, Sharp has stated the claim that State Street aided and abetted the Spitzes’ breach of fiduciary duty to Sharp if Sharp has alleged State Street’s knowing inducement of or participation in the breach committed by the Spitzes that resulted in damages Sharp seeks — i.e., the $19 million that the Spitzes looted after Sharp allegedly should have blown the whistle. “Inducement” seems to be undefined under New York law, but is a common enough term. See Black’s Law Dictionary at 790 (8th ed.2004) (defining “inducement” as “[t]he act or process of enticing or persuading another person to take a certain course of action”). “A person knowingly participates in a breach of fiduciary duty only when he or she provides ‘substantial assistance’ to the primary violator.” Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d 157. Substantial assistance may only be found where the alleged aider and abettor “affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur.” See id. “[T]he mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff.” Id.; see also Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 284 (2d Cir.1992) (under federal law, “[o]ne participates in a fiduciary’s breach if he or she affirmatively assists, helps conceal, or by virtue of failing to act when required to do so enables it to proceed”), abrogated on other grounds as noted in Gerosa v. Savasta & Co., 329 F.3d 317, 319 (2d Cir.2003). Since Sharp does not contend that State Street owed Sharp a fiduciary duty, Sharp must allege that State Street committed affirmative acts that furthered the Spitzes’ breaches of fiduciary duty" } ]

[ { "docid": "6284996", "title": "", "text": "resulting from the defendants’ unlawful promotion practices was shown in the Foster and Buskey cases “only as a statistical incident.” The court’s earlier finding, in the individual cases, of no racial discrimination with regard to these particular plaintiffs reflects the district court’s belief that the defendants had overcome the presumption yielded by the class findings and conclusions: that they had discriminated against the plaintiffs. When plaintiffs prove that an employer discriminated against a class, then a presumption of back pay and individual injunctive relief arises, but the employer may rebut the presumption with clear and convincing evidence that a discriminatee would not have been hired absent discrimination. See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1255 n.1 (5th Cir. 1977); McCormick v. Attala County Board of Education, 541 F.2d 1094, 1095 (5th Cir. 1976). Where the defendant offers sufficient proof that white recipients of promotions are better qualified than the black individual who alleges discrimination, then the district court’s denial of injunctive relief and damages to that plaintiff is proper. Cooper v. Allen, 493 F.2d 765, 769 (5th Cir. 1974); McCormick v. Attala County Board of Education, 424 F.Supp. 1382, 1385 (N.D.Miss., 1976). The plaintiffs assert, however, that the district court erred in concluding that they were less qualified than those persons actually promoted to principal and central office positions because that conclusion was based on a less than exhaustive comparison and cas not reached by applying a uniform or standardized evaluation method. The district court’s findings of fact indicate that “[t]he evidence discloses that Foster did make an application [for a promotion] and that his name was considered along with others in regard to each vacancy that occurred.” The court made findings of fact, however, that compared Foster’s qualifications only with the recipients of those promotions for which he specifically applied. We vacate and remand so that the court can make the appropriate comparison and findings with respect to all of the promotion opportunities alleged to have been denied Foster due to racial discrimination. Only those promotions within the relevant time periods, of course, are pertinent to this" } ]

[ { "docid": "5058421", "title": "", "text": "points to the overall qualifications of both plaintiff and the white female to justify the selection. The fact that defendant has not clarified the basis for its decision essentially constitutes a failure to articulate a legitimate nondiscriminatory reason for that decision. Even if the court were to find that defendant has articulated a legitimate reason for not hiring plaintiff, its explanations lack credibility. Although plaintiff’s polygraph examination reflected some deception, which might otherwise be a legitimate reason for refusing to hire, the evidence shows that Jackie Ray also exhibited deception in her polygraph and was nevertheless hired. Therefore, the polygraph results cannot be considered a legitimate basis for defendant’s hiring decision. Further, plaintiff’s overall qualifications were better than Jackie Ray’s. The defendant’s explanations for failure to hire plaintiff are inconsistent with the evidence and therefore unpersuasive. Where the defendant’s explanation lacks credibility or where discrimination is the more likely motive, a case is made for pretext. Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 527 (11th Cir.1983), citing Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. In a disparate treatment case, plaintiff always bears the ultimate burden of persuading the court that defendant intentionally discriminated against her. Eastland v. Tennessee Valley Authority, 704 F.2d 613, 619 (11th Cir.1983); Lanphear v. Prokop, 703 F.2d 1311, 1314 (D.C.Cir.1983). Plaintiff must prove that race was a significant factor in defendant’s decision. Lincoln, 697 F.2d at 938. Under the Supreme Court’s Burdine guidelines, when a defendant fails to produce sufficient credible evidence to rebut a prima facie case, plaintiff will prevail without any further showing. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The court is permitted to infer discriminatory motive, which is extremely difficult to prove directly. The court has concluded that plaintiff should prevail on her disparate treatment claim. The evidence shows that plaintiff was better qualified for the receptionist job than the white person who was selected. The evidence also shows that plaintiff was treated differently from the other applicants during the selection process. Although plaintiff exhibited signs of deception in her polygraph test, the person selected" }, { "docid": "3029615", "title": "", "text": "proof that white recipients of promotions are better qualified than the black individual who alleges discrimination, then the district court's denial of injunctive relief and damages to that plaintiff is proper.” 600 F.2d at 474. . The NEA also attempted to show that (1) Roberts and Stephens belong to a racial minority, (2) they applied and were qualified for positions for which the Board was seeking applicants, (3) the Board rejected them despite their qualifications, and (4) the Board appointed nonminorities to the positions. It thus attempted to raise an inference of purposeful discrimination through proof of the four-prong test established 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, 677 (1973). A party may utilize proof of the McDonnell Douglas factors to raise an inference of purposeful employment discrimination in a case brought under 42 U.S.C. § 1981. See Crawford v. Western Elec. Co., 614 F.2d 1300, 1315 (5th Cir. 1980). We need not decide whether the evidence presented by the NEA was sufficient to raise an inference of purposeful discrimination because, in the context of this case, any showing by clear and convincing proof that Roberts and Stephens would not have been employed absent the class-based discrimination clearly would suffice to rebut the inference of purposeful discrimination raised by proof of the McDonnell Douglas factors. See generally id. at 1320-21. It is appropriate to note one other matter. If an employer is unable to prove by clear and convincing evidence that the individual member of the class seeking relief would not have been hired absent the discrimination, individual relief must be awarded unless special circumstances are present. See McCormick v. Attala County Bd. of Educ., 541 F.2d 1094, 1095 (5th Cir. 1976); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 253 (5th Cir. 1974). The record is devoid of evidence of special circumstances that would prevent relief in this action. . The evidence presented to the district court discloses the following statistical information: Racial Composition of Student Population SCHOOL WHITE BLACK YEAR NUMBER PERCENTAGE" }, { "docid": "13931387", "title": "", "text": "hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference. 431 U.S. at 359, 97 S.Ct. at 1866 (footnote omitted). This shift is justified because “the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer.” Id. at 359-60 n. 45, 97 S.Ct. at 1867 n. 45; Lee v. Washington County Board of Education, 625 F.2d 1235, 1239 (5th Cir.1980); Mims v. Wilson, 514 F.2d 106, 109-10 (5th Cir.1975). Several decisions of our sister circuits have adopted the Mt. Healthy causation standard in dual motive Title VII cases. Miles, 750 F.2d at 876; Smith v. State of Georgia, 749 F.2d 683, 687 (11th Cir.1985); Smallwood v. United Air Lines, Inc., 728 F.2d 614 (4th Cir.), cert. denied, — U.S. -, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984); Bell, 715 F.2d 1552 (11th Cir.1983); Perryman, 698 F.2d at 1143; Day v. Mathews, 530 F.2d 1083, 1085 (D.C.Cir.1976). But see Norcross v. Sneed, 755 F.2d 113, 118—119 (8th Cir.1985) (refused to apply Mt. Healthy to action under Rehabilitation Act of 1973, 29 U.S.C. § 794); Toney v. Block, 705 F.2d 1364 (D.C.Cir.1983). “Defendant cannot rebut this type of showing of discrimination [direct evidence of discriminatory motivation] simply by articulating or producing evidence of legitimate, nondiscriminatory reasons____ [Defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of that factor.” Lee, 684 F.2d at 774 (footnotes omitted). This is true whether the illegal motive is proven “by either circumstantial or direct evidence.” Id.; Zebedeo, 582 F.Supp. at 1412 n. 7. We recently suggested approval of such a causation standard, noting that where there is “direct evidence of a facially discriminatory policy, the burden of persuasion would shift to the defendant to justify its actions by whatever means available.” Lujan v. Franklin County Board of Education, 766 F.2d 917, 929 n. 16 (6th Cir.1985), citing Bell, 715 F.2d 1552. See also EEOC v. Maxwell Co., 726 F.2d 282, 283-84" }, { "docid": "3066916", "title": "", "text": "of blacks hired. Even without such a concession, all credible evidence demonstrates that D&L’s hiring during the Grizzard era was discriminatory with respect to race. This Court should therefore reverse on this issue and remand for the district court to decide damages. B. Promotions 1. Proper Labor Pool Like the district court’s analysis and the majority’s review of the hiring data, this writer finds that the analysis and review of the promotion statistics are greatly misleading. The majority, quoting Lewis v. National Labor Relations Board, correctly sets forth the proper statistical framework upon which claims of promotion discrimination claims must be based: “In establishing an inference of discrimination from statistical evidence, the ‘required comparison [is] to a qualified pool of employees presumptively eligible for promotion.’ ” Maj. op. at 1290 (quoting Lewis, 750 F.2d 1266, 1275 (5th Cir.1985) (emphasis in original)). Unlike this case, in both Lewis, which this writer authored, and Pouncy v. Prudential Insurance Company of America, to which the majority refers, there were minimum objective qualifications for promotions which precluded comparison of the proportion of minorities promoted to the proportion of minorities in the overall work force. The promotion pool was smaller than the entire work force. In Pouncy, only those employed at level eleven could be promoted to level twenty. Pouncy, 499 F.Supp. 427, 454 (S.D.Tex.1980), affd, 668 F.2d 795 (5th Cir.1982). Similarly, in Lewis, only employees who had reached the GS-12 field examiner level or the GS-13 field attorney level were “presumptively eligible” for promotion. Lewis, 750 F.2d at 1275. Comparison with the entire work force in those cases was improper, since not all of the employees had reached the required employment level for promotion. This case is quite different. Here, every production worker is “presumptively eligible” for promotion to the leader positions in question, and every leader is “presumptively eligible” for promotion to the foreman positions in question. There is no educational, skill, or other objective requirement for promotion to those positions at D&L. With the exception of the attendance record, all of the “qualifications” which the D&L supervisors thought were important were entirely" }, { "docid": "23027318", "title": "", "text": "although it is true that the employer need not prove it was actually motivated by the proffered reason, Burdine clearly does not relieve the employer from producing a reason that was available to it at the time of the decision’s making. Moreover, this Court has squarely held that an employer may not satisfy its burden of production by offering a justification which the employer either did not know or did not consider at the time the decision was made. EEOC v. Alton Packaging Corp., 901 F.2d 920, 925 (11th Cir.1990); Joshi 763 F.2d at 1235; see also Burdine, 450 U.S. at 257, 101 S.Ct. at 1095-96 (to satisfy its intermediate burden, an employer must “... produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been moti vated by discriminatory animus.”) (emphasis added). AmSouth’s proffered reason is insufficient to meet its burden of production. AmSouth came forward with no explanation of why it rejected Turnes based on what it knew when it rejected him. Therefore, Turnes’ “prima facie case stands unrebutted, and discrimination is established.” Joshi, 763 F.2d at 1236. Turnes is not entitled to relief, however, if AmSouth’s discriminatory failure to process his application caused him no injury. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 1896-97, 52 L.Ed.2d 453 (1977) (plaintiffs who lacked the qualifications for hiring “could have suffered no injury as a result of the alleged discriminatory practices.”). If AmSouth can show that Tumes would not have been hired even absent the discrimination, Turnes’ claim will fail. Id. at 403-04 n. 9, 97 S.Ct. at 1897 n. 9 (employer is entitled to prove as a defense at trial that plaintiff was not qualified and therefore would not have been hired in any event). This defense must be proven by a preponderance of the evidence. Joshi, 763 F.2d at 1236; Lewis, 731 F.2d at 1538. Therefore, despite the district court’s erroneous conclusion that AmSouth had met the intermediate burden of production, summary judgment for AmSouth would have been proper if, in" }, { "docid": "10050308", "title": "", "text": "discrimination throughout the selection process. If the process is discriminatory at any stage, Plaintiff is entitled to relief regardless of her qualifications relative to those ultimately hired. King v. Trans World Airlines, Inc., 738 F.2d 255, 257 (8th Cir.1984); Ostroff v. Employment Exch., Inc., 683 F.2d 302, 304 (9th Cir.1982) (“When an employer summarily rejects an applicant without considering his or her qualifications, those qualifications are irrelevant to whether the Title VII plaintiff has raised a prima facie case of disparate treatment.”); Nanty v. Barrows Co., 660 F.2d 1327, 1332 (9th Cir.1981). See also Spokane Concrete, 534 F.Supp. at 523. Should Plaintiff prove that Defendants discriminated against her in the screening process she will be entitled to appropriate relief. When a legitimate candidate for a job has demonstrated that he has been the subject of unlawful discrimination in the employment process, he is entitled to an injunction against future, or continued, discrimination. The purpose of such an order is to ensure that, at the very least, the applicant will receive full and fair consideration from the employer if he seeks similar employment in the future. Nanty, 660 F.2d at 1333. It is at this point that Plaintiffs ultimate qualifications relative to the individuals actually hired is particularly relevant. If Plaintiff “proved unlawful discrimination in the hiring process, then the employer would be entitled to prove by clear and convincing evidence that the job applicant would not have been hired [even in the absence of the proven discrimination] in order to limit the job applicant’s relief.” King, 738 F.2d at 257-58. Accord United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir.1988); Muntin v. State of Cal. Parks and Recreation Dep’t, 671 F.2d 360, 363 (9th Cir.1982) (“If the defendant meets that burden, establishing by clear and convincing evidence that the plaintiff would not have been hired even absent the illegal discrimination, then retroactive appointment or promotion, and back pay, would not be among the available remedies.”). C. The Judges’ Motion for Summary Judgment To understand the burdens placed upon the Defendant Judges in this case, the court must" }, { "docid": "23267163", "title": "", "text": "a substantial motivating factor in the City’s determination to demote him, and that the City has not shown that Williams would have been demoted regardless of his activities. (T-200) (Jury Instructions). In this circuit, the law is clear that a plaintiff so discriminated against in the employment context is normally entitled to reinstatement and back pay, absent special circumstances warranting the denial of equitable relief. See Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1114 (5th Cir. 1980); Lee v. Washington County Board of Education, 625 F.2d 1235, 1239 (5th Cir. 1980); Davis v. Board of School Commissioners of Mobile County, 600 F.2d 470, 474 (5th Cir. 1979), vacated in part on other grounds, 616 F.2d 893 (5th Cir. 1980); McCormick v. Attala County Board of Education, 541 F.2d 1094, 1095 (5th Cir. 1976); Mims v. Wilson, 514 F.2d 106, 109-11 (5th Cir. 1975); Sterzing v. Fort Bend Independent School District, 496 F.2d 92, 93 (5th Cir. 1974); accord, Jannetta v. Cole, 493 F.2d 1334, 1338 (4th Cir. 1974); see Clary v. Irvin, 501 F.Supp. 706, 712-13 (E.D.Tex.1980). Because the jury, whose verdict we reinstate, necessarily found those facts which normally trigger the remedies of reinstatement and back pay, and because the City has pointed to no circumstances that would justify denying such relief, the district court should have granted Williams’ claims for equitable relief. However, the City suggests that there was a stipulation between the parties that the jury verdict would be advisory only and would not bind the trial court as to the facts. We find no such stipulation in the record. The record reveals only that the equitable issues of reinstatement and back pay would be “reserved for the court.” Record on Appeal, at 92. Under the law discussed above, such reservation means that the trial court would exercise its limited discretion to determine the propriety of equitable relief based on the facts as found by the jury. Accordingly, the district court erred in denying Williams’ claims for equitable relief. ■ VII. CONCLUSION On the basis of the foregoing discussion, the decision by the district court" }, { "docid": "20109961", "title": "", "text": "by Reserve Life. 1. Back pay a. Overview Back pay has consistently been regarded by the courts as a presumptive right of individuals who, because of discrimination, have been denied employment opportunities, through termination, demotion, non-promotion, or the failure to hire. The Supreme Court has been unequivocal in this regard: [G]iven a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975) (footnote omitted). Presumptive entitlement to back pay has similarly been declared by this Circuit and the former Fifth Circuit. Nord v. United States Steel Corp., 758 F.2d 1462, 1472 (11th Cir.1985); Lewis v. Smith, 731 F.2d 1535, 1538 (11th Cir.1984); McCormick v. Attala County Board of Education, 541 F.2d 1094, 1095 (5th Cir.1976). The calculation of a back pay award should not be confined to the mere provision of “straight salary,” but rather should embrace fringe benefits such as health insurance coverage, life insurance benefits, annual retirement contributions, and profit sharing. See, e.g., Cox v. American Castiron Pipe Co., 784 F.2d 1546, 1562 (11th Cir.), cert. denied, — U.S. -, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986), citing Pettway v. ACIPCO, 494 F.2d 211, 263 (5th Cir.1978) (overtime, shift differentials, bonuses, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay). In keeping with the objective of making the injured party whole, however, a back pay award under Title VII should be limited to proven economic loss. Darnell v. City of Jasper, Alabama, 730 F.2d 653, 656 (11th Cir.1984); Marks v. Prattco, Inc., 607 F.2d 1153, 1155-56 (5th Cir.1979). More particularly, the discriminatee has a duty to minimize damages by seeking alternative employment. Darnell, 730 F.2d at 656. The statute itself declares in this regard: Interim earning or amounts earnable with reasonable diligence by the person or persons discriminated against shall- operate to" }, { "docid": "22835979", "title": "", "text": "153 (4th Cir.1983), cert. granted, — U.S. —, 104 S.Ct. 3532, 82 L.Ed.2d 837 (1984); Federal Reserve Bank, 698 F.2d at 672. Gairola has not satisfied this burden. Paul was more qualified for the promotion inasmuch as she had taken a college course in instrumentation and had received considerable practical experience operating technical instruments since she began her employment with the Commonwealth in 1979. Because instrumentation ability was fundamental to the job Gairola sought, Paul was the more qualified, albeit the later hired, applicant for the position. See, e.g., Young, 748 F.2d at 198 (individual with 9 years of work experience was more qualified for the particular position sought than the one with 12 years of experience); Lewis v. Central Piedmont Community College, 689 F.2d at 1210 (better qualified person for the position had greater academic preparation but less practical experience). Neither Title VII nor sections 1981 and 1983 require an employer to adopt a life of economic altruism and thereby immunize protected class members from discharge or demotion despite their poor performance and inadequate qualifications. Rather, these antidiscrimination remedies merely preclude an employer from treating some employees less favorably than others “because of” their race or some other similarly impermissible characteristic. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Lewis v. University of Pittsburgh, 725 F.2d at 914. Gairola never met her employer’s reasonable expectations nor was she as well qualified as the individual chosen for the promotion she had sought. Failing to satisfy two prongs of the McDonnell Douglas four-part test, Gairola did not establish a prima facie case. See Lovelace, 681 F.2d at 240 (Insofar as “the plaintiff’s evidence fails even to support the unadmitted predicates of the [McDonnell-Douglas] presumption ... [judicial] inquiry ... ends and the motion [for directed verdict] can be granted.”). Even assuming that Gairola established her prima facie case, defendants have adequately rebutted the presumption of discrimination under McDonnell Douglas by articulating legitimate reasons for her dismissal without a showing that such reasons were merely a pretext for unlawful discrimination. Defendants contended" }, { "docid": "13629637", "title": "", "text": "MEMORANDUM OPINION READY, Chief Judge. Upon plaintiff’s appeal from our initial ruling, McCormick v. Attala County Board of Education, D.C., 407 F.Supp. 586, the Fifth Circuit vacated our prior order and remanded the cause to determine whether the school board’s racially discriminatory policy of hiring or replacing black teachers with black teachers and white teachers with white teachers, insofar as plaintiff, a black non-rehired teacher, has \"been thereby affected, entitled the plaintiff to back pay and reinstatement or if such unusual circumstances were present to relieve the defendant school board from liability for failing to consider plaintiff for reemployment, apart from the admitted continuance of the stated discriminatory hiring policy after the school district had successfully achieved a unitary school system. McCormick v. Attala County Board of Education, 541 F.2d 1094, (5 Cir. 1976). In its ruling the Fifth Circuit held that a public employee who is a discriminatee of an unconstitutional policy is presumptively entitled to appropriate relief, and “the burden of proof then shifts to the employer to show by clear and convincing evidence that the discriminatee would not have been hired absent discrimination.” If this burden is not met by the employer, back pay must be awarded unless special circumstances are present. At p. 1095. We are instructed that this result obtains no less in actions based on 42 U.S.C. §§ 1981 and 1983 than if based on Title VII. Mims v. Wilson, 514 F.2d 106, 109 (5 Cir. 1975). The Fifth Circuit expressly overruled our holding that immediate relief was not mandated since the defendant school officials had misconceived settled case law and were unaware that, once a unitary school system was established, faculty members were to be chosen, not in accordance with fixed racial ratios, but on the basis of “non-discriminatory application of objective merit standards in the selection and composition of faculty and staff.” Carter v. West Feliciana Parish School Board, 432 F.2d 875 (5 Cir. 1970); Lee v. Macon County Board of Education, 483 F.2d 242 (5 Cir. 1973). Cf. Pickens v. Okolona Municipal Separate School District, 380 F.Supp. 1036 (N.D.Miss. 1974). Also," }, { "docid": "10050309", "title": "", "text": "the employer if he seeks similar employment in the future. Nanty, 660 F.2d at 1333. It is at this point that Plaintiffs ultimate qualifications relative to the individuals actually hired is particularly relevant. If Plaintiff “proved unlawful discrimination in the hiring process, then the employer would be entitled to prove by clear and convincing evidence that the job applicant would not have been hired [even in the absence of the proven discrimination] in order to limit the job applicant’s relief.” King, 738 F.2d at 257-58. Accord United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir.1988); Muntin v. State of Cal. Parks and Recreation Dep’t, 671 F.2d 360, 363 (9th Cir.1982) (“If the defendant meets that burden, establishing by clear and convincing evidence that the plaintiff would not have been hired even absent the illegal discrimination, then retroactive appointment or promotion, and back pay, would not be among the available remedies.”). C. The Judges’ Motion for Summary Judgment To understand the burdens placed upon the Defendant Judges in this case, the court must first clarify the reasoning behind their inclusion in this action. As noted, Plaintiff has admitted that she has no evidence that the Judges themselves discriminated against her in any way. She contends that the discrimination occurred when All-man, for prohibited reasons, refused to forward her application to the Judges, even though she was more qualified for the probation officer position than other candidates whose names were forwarded to the Judges. The Judges remain in this action in their official capacities as defendants to Plaintiffs Title VII claims, not for any overt discriminatory action taken by them, but rather because of their status as the “employer” in this action. The Judges embody their respective courts and those courts are the Title VII “employer” in this action. Allman, as the agent of those courts for the purposes of this suit, may cause liability on the part of the courts if it is proven that, within the scope of his employment, he discriminated against Plaintiff due to her race or national origin or in retaliation for the filing" }, { "docid": "23630689", "title": "", "text": "Patterson v. American Tobacco Company, 535 F.2d 257, 269 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976) (back pay period extends until date of judgment); Gonzalez v. Markle Manufacturing Company, 487 F.Supp. 1088, 1092 (W.D.Tex.1980), aff'd, 614 F.2d 1083 (5th Cir.1980) (plaintiff entitled to back pay until date of judgment not date of magistrate’s report). Hence, the back pay period must be extended until February 27, 1984. Title VII claimants are also presumptively entitled to reinstatement under the “make whole” policy. Darnell, 730 F.2d at 655. See also Garza v. Brownsville Independent School District, 700 F.2d 253, 255 (5th Cir.1983)(reinstatement or hiring preference remedies are to be granted in all but the unusual cases; fact that the employer changed its procedures to eliminate future discrimination is not such an unusual circumstance nor is the fact that the employee now holds a job almost as good as the one she lost due to discrimination); Walker v. Ford Motor Company, 684 F.2d 1355, 1362-63 n. 9 (11th Cir.1982); McCormick v. Attala City Board of Education, 541 F.2d 1094, 1095 (5th Cir.l976)(“Once discrimination is proved, a presumption of entitlement to back pay and individual injunctive relief arises. The burden of proof then shifts to the employer to show by clear and convincing evidence that the discriminatee would not have been hired absent discrimination.”). In the present case, the district court gave no reason for denying plaintiff reinstatement. Absent a discussion of the court’s reasons, we are unable to perform our role of appellate review. Fed.R.Civ.P. 52(a). See Thompkins v. Morris Brown College, 752 F.2d 558, 565 (11th Cir.1985); Lee County Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1480 (11th Cir. 1984); Complaint of Ithaca, 582 F.2d 3, 4 (5th Cir.1978). Accordingly, we must remand for the district court to either grant reinstatement or, if the court determines reinstatement is inappropriate, to set out the extraordinary circumstances in this case which cause it to reach that conclusion. As an alternative to reinstatement, the court could have ordered front pay. James v. Stockham Valves & Fittings" }, { "docid": "23630690", "title": "", "text": "City Board of Education, 541 F.2d 1094, 1095 (5th Cir.l976)(“Once discrimination is proved, a presumption of entitlement to back pay and individual injunctive relief arises. The burden of proof then shifts to the employer to show by clear and convincing evidence that the discriminatee would not have been hired absent discrimination.”). In the present case, the district court gave no reason for denying plaintiff reinstatement. Absent a discussion of the court’s reasons, we are unable to perform our role of appellate review. Fed.R.Civ.P. 52(a). See Thompkins v. Morris Brown College, 752 F.2d 558, 565 (11th Cir.1985); Lee County Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1480 (11th Cir. 1984); Complaint of Ithaca, 582 F.2d 3, 4 (5th Cir.1978). Accordingly, we must remand for the district court to either grant reinstatement or, if the court determines reinstatement is inappropriate, to set out the extraordinary circumstances in this case which cause it to reach that conclusion. As an alternative to reinstatement, the court could have ordered front pay. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). See also Thompson v. Sawyer, 678 F.2d 257, 292 (D.C.Cir.1982); Fitzgerald v. Sirloin Stockade Inc., 624 F.2d 945 (10th Cir.1980). On remand, the court also should consider this option. In doing so, the court must bear in mind that awards of front pay, like other relief under Title VII, must be fashioned in a manner to “further the goals of ending illegal discrimination and rectifying the harm it causes.” Thompson v. Sawyer, 678 F.2d at 292. For the foregoing reasons, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. . Nord previously had been employed by U.S.S. at its plant in Fairfield, Alabama. She was laid off after a year and a half. . In November, 1977, Nord orally asked her office supervisor, Clarence Bailey, to allow her to be considered for promotion to service representative. On June 16, 1978, Nord made a written request to assistant" }, { "docid": "21569363", "title": "", "text": "the time of her reinstatement. Employees may generally be entitled to backpay from the date of the adverse employment action until reinstatement. See Walker v. Ford Motor Co., 684 F.2d 1355, 1361 (11th Cir.1982). The period for which backpay is to be awarded turns on whether a claimant has established damages resulting from the discriminatory acts of the defendant for the entire time period sought. Id. See also Mims v. Wilson, 514 F.2d 106, 110 (5th Cir.1975) (if a defendant fails to show by clear and convincing evidence that the claimant would not have been hired absent discrimination, the claimant is normally entitled a backpay award to be computed as of the date he would have been hired absent discrimination to the date he is offered a position or would have terminated employment if hired, less mitigation). The district court should have granted plaintiff’s motion for discovery directed at establishing damages for this time period. The plaintiff on remand should also have been allowed to present evidence on reinstatement status. Absent unusual circumstances, Title VII claimants are presumptively entitled to reinstatement under the “make whole” policy embodied in the legislation. See Donnellon v. Fruehauf Corp., 794 F.2d 598, 602 (11th Cir.1986); Nord v. U.S. Steel Corp., 758 F.2d 1462, 1473 (11th Cir.1985). The remedies which inure to victims of discrimination must be sufficient to restore them “to a position where they would have been were it not for the unlawful discrimination.” Franks v. Bowman Transp. Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976) (citation omitted). The denial of the opportunity to present evidence on this point is reversed. A decision as to the rightful place of reinstatement must be made after further proceedings on this remand. There was no abuse of discretion in the district court’s denial of an injunction against further discrimination. See NAACP v. City of Evergreen, 693 F.2d 1367, 1370 (11th Cir.1982) (decision to grant injunction rests in trial court’s discretion and will only be reversed upon a showing of an abuse of that discretion). AFFIRMED IN PART, REVERSED IN PART, AND" }, { "docid": "3029606", "title": "", "text": "discrimination against blacks, and (3) that the Board’s actions violated the individuals’ rights secured by the fourteenth amendment to the United States Constitution and contravened the January 22, 1970, terminal order of desegregation. As such, the plaintiff-intervenor raised individual claims of employment discrimination cognizable under 42 U.S.C. §§ 1981 and 1983. A. Roberts and Stephens The district court rejected the individual claims of employment discrimination brought on behalf of Roberts and Stephens because the NEA failed to prove that, based on objective standards, they were the most qualified applicants for the position. The district court erred by imposing this burden on the plaintiff-intervenor. We therefore vacate this portion of the district court’s judgment and remand the action to the district court. In this circuit, the principles governing an individual’s right to back pay and injunctive relief in cases of class-based employment discrimination brought under 42 U.S.C. §§ 1981 and 1983 are clear. Once purposeful discrimination against a class is proved, a presumption of an entitlement to back pay and individual injunctive relief arises with respect to the members of that class. The burden of proof then shifts to the employer to show by clear and convincing evidence that the individual member of the class seeking relief would not have been hired absent the discrimination. See Davis v. Board of School Commissioners, 600 F.2d at 474; McCormick v. Attala County Board of Education, 541 F.2d 1094, 1095 (5th Cir. 1976); Mims v. Wilson, 514 F.2d 106, 110 (5th Cir. 1975); Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972). The NEA showed that, between the school years 1970-71 and 1977-78, six vacancies occurred for the position of high school principal and that, despite the existence of qualified black applicants, the Board appointed a white applicant to fill each of the six vacancies. Prior to the January 22,1970, terminal order of desegregation, the Board operated a dual public school system consisting of thirteen schools. Eight of these schools were white and had white principals. The remaining five schools were black and had black principals. Since the order of desegregation, the Board" }, { "docid": "23027316", "title": "", "text": "burdens, drops out of the case, and the trier of fact proceeds to decide the ultimate issue in the ease: whether plaintiff has proven that the employer intentionally discriminated against him because of his race. St. Mary’s, — U.S. at -, 113 S.Ct. at 2749. On the other hand, where a plaintiffs prima facie case is established, but the employer fails to meet its burden of production, the unrebutted presumption of discrimination stands. Joshi v. Florida State Univ. Health Ctr., 763 F.2d 1227, 1236 (11th Cir.), cert. denied, 474 U.S. 948, 106 S.Ct. 347, 88 L.Ed.2d 293 (1985). Therefore, judgment for the plaintiff is appropriate, St. Mary’s, — U.S. at -, 113 S.Ct. at 2748, unless the employer proves by a preponderance of the evidence that absent the discrimination, the plaintiff would not have been hired anyway. Joshi, 763 F.2d at 1235-36; Lewis v. Smith, 731 F.2d 1535, 1538 (11th Cir.1984) (“Once discrimination has been established ... a presumption of entitlement to appropriate remedies ... arises_ The burden then shifts to the employer to rebut by showing [by a preponderance of the evidence] that the discriminatee would not have been hired absent the discrimination.”). C. Application The court below assumed without deciding that Turnes made a prima facie ease, and we make the same assumption on appeal. Although it is undisputed that Am-South had no knowledge of Turnes’ credit history when his application ‘was rejected, AmSouth attempted to meet its intermediate burden by positing Turnes’ credit history as its legitimate, non-discriminatory reason for not hiring him. The district court accepted AmSouth’s justification as adequate to meet the intermediate burden, relying on the following language from Burdine: “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The district court erred in reading the above-quoted language from Burdine as allowing an employer to meet the intermediate burden with a hypothetical justification for its decision. Taken in context, the quoted sentence merely explains that the employer’s intermediate burden is one of production, not persuasion. In other words," }, { "docid": "22357866", "title": "", "text": "there was any way to find out whether there had been an opening in that department at the time of Rollins’ termination. He responded that he did not know of any way to determine whether there had been a position available. We also have no record before us establishing exactly when other positions became available at the company. We view these as unresolved issues of fact. . Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982) declares that decisions issued by a Unit B panel of the former Fifth Circuit bind this court. . Appellant suggests that she has presented direct evidence of discrimination and thus has shifted the burden of proof to appellee to show that there was a legitimate reason for firing her. Appellant is correct that, where direct evidence of discrimination exists, a defendant has a much higher burden than it would where only circumstantial evidence is available. See e.g., Bell v. Birmingham Linen Serv., 715 F.2d 1552, 1557-58 (11th Cir.1983). Here, however, there is no direct evidence of discrimination. Direct evidence is \"[evidence, which if believed, proves existence of fact in issue without inference or presumption.\" Black’s Law Dictionary 413 (5th ed. 1979) (citation omitted) (emphasis added). One example of direct evidence would be a scrap of paper saying, \"Fire Rollins — she is too old.\" See Williams, 656 F.2d at 130. This court found that there was direct evidence of discrimination when an INS reviewing committee set aside a female applicant’s file without reviewing it because the two men knew the director would not consider hiring a woman investigator. Lewis v. Smith, 731 F.2d 1535 (11th Cir.1984). In these instances, the fact that the evidence exists, by itself, proves the discrimination. The evidence at issue here, on the other hand, suggests discrimination. The trier of fact must infer discrimination based on the evidence. By definition, then, it is circumstantial evidence. . These cases apply to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-l to 2000e-17 (1982). Title VII claims involve discrimination based on race, religion, sex, and national" }, { "docid": "17480183", "title": "", "text": "denied individual injunctive relief on the same rationale. While it is true that, since there was only one job opening at the time Cooper sought employment in 1969, he is entitled to back pay only if he was the most qualified applicant, the district court erred in placing the burden of proof on Cooper. We have already determined that the City’s discrimination against him was not intentional. In such circumstances, Cooper is entitled both to back pay and individual injunctive relief unless the City can show by clear and convincing evidence that he would not have been hired even absent the discriminatory testing requirement. See Rolfe v. County Board of Education, 6 Cir. 1968, 391 F.2d 77, 80; Hill v. Franklin County Board of Education, 6 Cir. 1968, 390 F.2d 583, 585; Wall v. Stanly County Bd. of Ed., 4 Cir. 1967, 378 F.2d 275; Smith v. Board of Education, 8 Cir. 1966, 365 F.2d 770; Williams v. Kimbrough, W.D.La., 295 F.Supp. 578, aff’d 5 Cir. 1969, 415 F.2d 874. It was in 1969 that Cooper applied for the job and was required to take the Otis test. At that time the City imposed four requirements for employment as a golf pro other than a satisfactory test score: The applicant must (1) be between the ages of 25 and 40; (2) have at least 5 years’ experience as a golf pro or as an assistant golf pro; (3) possess Class A membership in the PGA, or eligibility therefor; and (4) successfully complete an oral interview. On remand the City must prove by clear and convincing evidence that, in the light of the enumerated qualifications, Cooper would not have been entitled to the job even had there been no requirement to take and pass the Otis test. That is, the City must show that the person actually hired was on the whole better qualified for the job. On this appeal the City contends that, in 1969, Cooper did not meet even the minimum qualifications because he lacked the requisite 5 years’ experience as a golf pro or as an assistant golf" }, { "docid": "14727566", "title": "", "text": "Barrows to hire him, we set forth the burden of proof that is applicable to the determination of this issue. The McDonnell Douglas rule that the ultimate burden of proof remains on the plaintiff is not applicable after unlawful discrimination has been proven. League, etc. v. City of Salinas Fire Degft., 654 F.2d 557, 559 (9th Cir. 1981). At the relief stage, we apply the opposite rule and impose a heavy burden on the defendant. Id. Where a job applicant has proved unlawful discrimination in the employment process, he must be awarded full relief, /. e., the position retroactively, unless the “defendant shows ‘by “clear and convincing evidence” that even in the absence of discrimination the rejected applicant would not have been selected for the open position.’ Marotta v. Usury, 629 F.2d 615, 618 (9th Cir. 1980) [citing Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976)].” Id. at 558. This court, in League, explained the reason for this rule: The burden of showing that proven discrimination did not cause a plaintiff’s rejection is properly placed on the defendant-employer because its unlawful acts have made it difficult to determine what would have transpired if all parties had acted properly. See Day, 530 F.2d at 1086. Id. at 559. Barrows contends that Nanty was not as qualified as the Caucasians who were hired, and that as a result Nanty would not have been hired even in the absence of discrimination. The district court did not consider this contention. It simply made a finding, which we have held to be erroneous, that Nanty was not qualified for the job. For reasons we have explained earlier, Barrows’ contention regarding the superior qualifications of those actually hired is not relevant to our determination of unlawful discrimination in the employment process. It is relevant, however, to the question whether Nanty would have been hired, absent such discrimination, and thus to the question of Nanty’s right to the job. Since the district court has not previously considered the issue of what relief is required or the effect of Barrows’ claim regarding the superior qualifications of others, we remand" }, { "docid": "4469923", "title": "", "text": "Romine, Inc., 518 F.2d 332 (5th Cir. 1975)). In light of Conecuh’s recent conversion from a dual school system, however, the trial court correctly found that in this case the burden was upon defendants to prove nondiscriminatory reasons by clear and convincing evidence. At the time that Gantt filed this suit, Conecuh County was operating under a federal injunction ending a regime of de jure segregation. “Proof of an immediate past history of racial discrimination alone can be sufficient to shift to the local board of education the burden of justifying its employment decisions by clear and convincing evidence. [citations omitted]” Lee v. Washington County Board of Education, 625 F.2d 1235, 1237 (5th Cir. 1980). Accord, Hardy v. Porter, 613 F.2d 112, 113 (5th Cir. 1980). The defendants’ ability to prove legitimate reasons for their decision not to promote Gantt was undermined by their failure to adopt written, objective nonracial criteria for selecting principals. The trial court stated that it was unable to conclude whether Gantt was better qualified than white candidates selected for principalships “for the Board has not adopted any such non-racial objective criteria and, until this is done, the Court will never be in a position to adequately consider the propriety of any principal selection made by the Board.” The defendants’ contention that they acted for legitimate reasons could therefore not rest on the assertion that any of the applicants chosen were more qualified than Gantt and it was impossible for them to carry the burden of proving that “those hired or promoted were better qualified than the plaintiff.” Falcon v. General Telephone Company of the Southwest, 626 F.2d at 378. In each of the three principal selections of which Gantt complains, the only objective evidence available indicates that he was clearly superior to the candidate chosen. In each case Gantt possessed certification as a principal while the candidate chosen did not. Despite the objective evidence of Gantt’s superior qualifications, defendants contend that they refused to promote him because they considered him unfit for a principalship. Aside from inconclusive and largely irrelevant testimony concerning Gantt’s personal finances" } ]

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

[ { "docid": "18470243", "title": "", "text": "discretion of the court. See In re Flight Transportation Corp. Secs. Litigation, 730 F.2d 1128, 1135 (8th Cir.1984), cert. denied sub nom. Reavis & McGrath v. Antinore, 469 U.S. 1207, 105 S.Ct. 1169, 84 L.Ed.2d 320 (1985); Walsh v. Great Atlantic & Pacific Tea Co. Inc., 726 F.2d 956, 965 (3d Cir.1983); Girsh v. Jepson, 521 F.2d 153,156 (3d Cir.1975). The Court shall approve the proposed settlement if it is fair, reasonable and adequate. Walsh, 726 F.2d at 965. Rule 23(e) imposes on this Court the duty of protecting absentee class members, which it executes by “assuring that the settlement represents adequate' compensation for the release of the class claims.” In re General Motors, 55 F.3d at 805 (citing 2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.46 at 11-105 to 11-106 (3d Ed.1992)); see Grunin v. Int'l House of Pancakes, 513 F.2d 114, 123 (8th Cir.) (court has fiduciary obligation to class in evaluating the fairness and overall adequacy of the relief provided in settlement), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975); Luevano v. Campbell, 93 F.R.D. 68, 85 (D.D.C.1981) (same). It is well-established that courts assume a limited role when reviewing a proposed class action settlement. In re National Student Marketing Litigation, 68 F.R.D. 151, 155 (D.D.C.1974). They should not substitute their judgment for that of counsel who negotiated the settlement. Sommers v. Abraham Lincoln Federal Savings & Loan Ass’n, 79 F.R.D. 571, 576 (E.D.Pa.1978). Rather, courts favor the resolution of disputes through voluntary compromise, Williams v. First Nat’l Bank of Pauls Valley, 216 U.S. 582, 585, 30 S.Ct. 441, 443, 54 L.Ed. 625 (1910), and, therefore, strongly encourage settlements. Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312 (7th Cir.1980). In the context of class actions, settlement is particularly appropriate given the litigation expenses and judicial resources required in many such suits. Id. at 313; Sunrise Toyota v. Toyota Motor Co., Ltd., 1973-1 Trade Cases ¶ 74,398 at 93,821,1973 WL 778 (S.D.N.Y.1973). “Absent evidence of fraud or collusion, such settlements are not to" }, { "docid": "17278173", "title": "", "text": "potential class members with “the information necessary to make an informed and intelligent decision whether to participate in the class and whether to object to the Proposed Settlement.” In re Prudential, 962 F.Supp. at 526. YI. FAIRNESS OF SETTLEMENT A. Role of Court and Presumption of Fairness Federal Rule of Civil Procedure 23(e) provides that “[a] class action shall not be dismissed or compromised without the approval of the court...,” thereby protecting “unnamed class members from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise.” Amchem, 521 U.S. at 623, 117 S.Ct. 2231. The Third Circuit has expressed a need for heightened scrutiny where a case is settled before the class has been formally certified. In re General Motors Corp. Pick-Up Truck, Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 805 (3d Cir.1995). The court’s duty is to protect absent class members by assuring the settlement represents adequate compensation for the release of the class claims, a duty which some courts have described as a “fiduciary responsibility.” Id. Nevertheless, the Third Circuit also has held that there is an overriding public interest in settling and quieting litigation, particularly in class actions. See Id. at 784 (“the law favors settlement, particularly in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation”); In re School Asbestos Litig., 921 F.2d at 1333 (Third Circuit’s policy is to encourage settlement of complex litigation “that otherwise could linger for years”). An initial “presumption of fairness for the settlement is established if the court finds that: (1) the negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected.” In re Cendant Corp. Litigation, 264 F.3d 201, 232 n. 18 (3d Cir.2001) (citing In re General Motors, 55 F.3d at 785). In the case at bar, class counsel submitted affidavits showing the settlement resulted from intensive, arm’s" }, { "docid": "6188071", "title": "", "text": "problems at the original thirteen institutions involved in the suit. In the environmental/fire safety area, the DOC is negotiating a memorandum of understanding with the Department of Environmental Resources to provide independent oversight of the DOC’s compliance with respect to certain environmental provisions of the Agreement. Plaintiffs’ counsel will also have the right to monitor the DOC’s compliance and, to that end, will be provided with various reports and surveys. Such documents and other information will enable plaintiffs’ counsel to monitor compliance in this area of the settlement. H. Attorneys’ Fees The parties have agreed that plaintiffs’ attorneys will receive $1.4 million in counsel fees and costs. This payment includes any claims for fees and costs that plaintiffs could make under 42 U.S.C. § 1988 or any other federal statute or rule of procedure for all work done and costs expended in the litigation of this matter to date. III. DISCUSSION Unlike the typical two-party suit, a class action is a procedural device which allows a group of individuals with common interests to join together to pursue their collective claims through representatives. One commentator has stated that the dual mission of the class action is “to reduce the units of litigation by bringing under one umbrella what might otherwise be many separate but duplicating actions [and], even at the expense of increasing litigation, to provide means of vindicating the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Benjamin Kaplan, A Prefatory Note, 10 B.C.Indus. & Commercial L.Rev. 497, 497 (1969). In traditional, two-party litigation there is a general policy in favor of encouraging settlements because such a resolution conserves judicial resources and minimizes litigation expenses. See Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910) (“Compromises of disputed claims are favored by the courts.”); Sherin v. Gould, 679 F.Supp. 473, 474 (E.D.Pa.1987) (same). While the same considerations apply in the class action context, the extraordinary amount of judicial and private resources consumed by massive class action litigation elevates the general" }, { "docid": "6188073", "title": "", "text": "policy of encouraging settlements to “an overriding public interest.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977); see also Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980) (“Settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources.”). Because of their representative nature, however, settlements of class actions are particularly susceptible to abuse by the named plaintiffs or their attorneys. Class representatives and their attorneys, entrusted with the responsibility and ability to settle claims on behalf of all class members, may be tempted to settle a case at more favorable terms for themselves, to the detriment of absent class members. To guard against such improper conduct, it has long been the rule that “a class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given .to all members of the class in such manner as the court directs.” Fed.R.Civ.P. 23(e). A. Notice'to Class Members Although Rule 23(e) states without exception that “notice of the proposed dismissal or compromise shall be given,” courts have consistently held that notice to class members is required only when consistent with the rule’s purpose — the protection of absent class members. As an example, involuntary dismissals have been judicially exempted from the purview of the notice requirements of Rule 23(e) because there is no possibility that the named plaintiffs or their counsel could “sell out” the class for their own benefit. See 7B Charles A. Wright et al., Federal Practice and Procedure § 1797, at 345 (1986) (“Wright”) (“Another exception to the mandatory notice requirement in Rule 23(e) occurs when the dismissal is not voluntary.”); but see Papilsky v. Bemdt, 466 F.2d 251, 257 (2d Cir.), cert, denied, 409 U.S. 1077, 93 S.Ct. 689, 34 L.Ed.2d 665 (1972) (stating that when plaintiffs consent to summary judgment being- entered against them, purpose of rule is implicated and notice is required). When the dismissal or settlement of a class" }, { "docid": "13627464", "title": "", "text": "161 L.Ed.2d 1080 (2005). “A ‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.’ ” Id. (quoting Manual for Complex Litigation (Third) § 30.42 (1995)). Rule 23(e) does not set forth the factors a court is to consider in determining whether an agreement is fair, reasonable, and adequate. In this Circuit, courts traditionally consider the following factors, commonly referred to as the Grinnell factors: (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through trial; (7) the ability of defendants to withstand greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (internal citations omitted), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000); see also Wal-Mart Stores, 396 F.3d at 117-19 (applying Grinnell factors in considering approval of settlement). The weight given to any particular factor varies based on the facts and circumstances of the case. 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1797.1, at 77 (3d ed. 2005). Public policy, of course, favors settlement. Wal-Mart Stores, 396 F.3d at 116-17; accord Williams v. First Nat’l Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910) (“Compromises of disputed claims are favored by the courts.”); TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 461 (2d Cir.1982) (noting “the paramount policy of encouraging settlements”). Consequently, when evaluating a settlement agreement, the court is not to substitute its judgment for that of the parties, nor is it to turn consideration of the adequacy of the settlement “into" }, { "docid": "6188072", "title": "", "text": "to pursue their collective claims through representatives. One commentator has stated that the dual mission of the class action is “to reduce the units of litigation by bringing under one umbrella what might otherwise be many separate but duplicating actions [and], even at the expense of increasing litigation, to provide means of vindicating the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Benjamin Kaplan, A Prefatory Note, 10 B.C.Indus. & Commercial L.Rev. 497, 497 (1969). In traditional, two-party litigation there is a general policy in favor of encouraging settlements because such a resolution conserves judicial resources and minimizes litigation expenses. See Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910) (“Compromises of disputed claims are favored by the courts.”); Sherin v. Gould, 679 F.Supp. 473, 474 (E.D.Pa.1987) (same). While the same considerations apply in the class action context, the extraordinary amount of judicial and private resources consumed by massive class action litigation elevates the general policy of encouraging settlements to “an overriding public interest.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977); see also Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980) (“Settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources.”). Because of their representative nature, however, settlements of class actions are particularly susceptible to abuse by the named plaintiffs or their attorneys. Class representatives and their attorneys, entrusted with the responsibility and ability to settle claims on behalf of all class members, may be tempted to settle a case at more favorable terms for themselves, to the detriment of absent class members. To guard against such improper conduct, it has long been the rule that “a class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given .to all members of the class in such manner as the court" }, { "docid": "13227301", "title": "", "text": "settlement have made a condition of effectiveness of the settlement that the Court certify the Class as to claims against the Settling Defendants, only, for purposes of settlement and enter an Order (“Bar Order”) barring the assertion of cross-claims by non-settling Defendants arising out of this case. The Bar Order would provide that, if a judgment is entered against non-settling Defendants, those Defendants would be entitled to a credit which shall be determined at the time of trial or judgment based on controlling legal principles in effect at that time. The memorandum of settlement provides for dismissal of all claims which Plaintiffs and the Class Members have brought, or could have brought, against the Settling Defendants, and for specified mutual releases among the Settling Defendants (including any subsequently-settling defendants). DISCUSSION The standards to be applied in determining whether to approve settlement of class actions are well established. The voluntary resolution of litigation through settlement is strongly favored by the courts. Williams v. First National Bank, 216 U.S. 582, 30 S.Ct. 441, 54 L.Ed. 625 (1910); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974); Mashburn v. National Healthcare, Inc., 684 F.Supp. 660, 667-68 (M.D.Ala.1988). This policy is particularly appropriate than in class actions: In the class action context in particular, “there is an overriding public interest in favor of settlement” settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strains such litigation imposes upon already scarce judicial resources. Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980) (citations omitted). See also Weinburger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982) (corrected on other grounds on petition for rehearing) [1982-83 Transfer Binder] F.Sec.L. Rep. (CCH) ¶ 99,074 (2d Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Van Bronkhorst v. SAFECO Corp., 529 F.2d 943, 950 (9th Cir.1976); In re Saxon Securities Litigation, [1985-86 Transfer Binder] F.Sec.L.Rep. (CCH) ¶ 92,414, at 92,525 (S.D.N.Y.1985). Rule 23(e) of the Federal Rules of Civil Procedure provides that “[a] class action shall not be" }, { "docid": "13227302", "title": "", "text": "City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974); Mashburn v. National Healthcare, Inc., 684 F.Supp. 660, 667-68 (M.D.Ala.1988). This policy is particularly appropriate than in class actions: In the class action context in particular, “there is an overriding public interest in favor of settlement” settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strains such litigation imposes upon already scarce judicial resources. Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980) (citations omitted). See also Weinburger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982) (corrected on other grounds on petition for rehearing) [1982-83 Transfer Binder] F.Sec.L. Rep. (CCH) ¶ 99,074 (2d Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Van Bronkhorst v. SAFECO Corp., 529 F.2d 943, 950 (9th Cir.1976); In re Saxon Securities Litigation, [1985-86 Transfer Binder] F.Sec.L.Rep. (CCH) ¶ 92,414, at 92,525 (S.D.N.Y.1985). Rule 23(e) of the Federal Rules of Civil Procedure provides that “[a] class action shall not be dismissed or compromised without the approval of the Court ...” As a general matter, the Court’s function in assessing a proposed settlement is to determine whether, as a whole, it is fair, adequate and reasonable to Class Members. See, e.g., Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir.1983); Troncelliti v. Minolta Corp., 666 F.Supp. 750, 752-53 (D.Md.1987); In re Mid-Atlantic Toyota Antitrust Litigation, 605. F.Supp. 440, 441 (D.Md.1984). In making this evaluation, courts generally cite certain primary factors to consider: 1. the fairness of the settlement negotiations and the views and experience of counsel; 2. the relative strength of the parties’ cases as well as the uncertainties of litigation on the merits; 3. the complexity, expense and likely duration of the litigation; 4. the adequacy of the settlement amount viewed against the risks and expenses of continued litigation; and 5. the stage of the litigation, including the factual record developed by the parties. For the reasons set forth herein, the Court is satisfied that the proposed settlement satisfies each of these criteria." }, { "docid": "22435052", "title": "", "text": "intervening plaintiffs to argue that the court somehow misapplied the class action standard; rather, they argue that the class action standard should not have been applied at all. It is to this argument which we direct our primary attention. Ill A It is axiomatic that the federal courts look with great favor upon the voluntary resolution of litigation through settlement. U. S. v. McInnes, 556 F.2d 436, 441 (9th Cir. 1977); Du Puy v. Director, Office of Workers’ Compensation Programs, 519 F.2d 536, 541 (7th Cir. 1975), cert. de nied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976). In the class action context in particular, “there is an overriding public interest in favor of settlement.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). Settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources. Id. Settlement of a class action is not, however, an unmixed blessing. Balanced against the “overriding public interest in favor of settlement” are strong countervailing public policies which counsel against automatic judicial acceptance of such agreements. First and foremost is the fact that most of those whose rights are affected by a class action settlement — the members of the class — are not involved in its negotiation nor are they present to voice their views in court. The class members must rely upon the representation of the class representatives and class counsel to protect their interests. While this representation is no doubt vigorous in most cases, on occasion the negotiating parties may find that their individual interests can best be served by a settlement which is not in the best interests of the class as a whole. Similarly, class counsel may be persuaded by the prospect of a. substantial fee to accept a settlement proposal which leaves the class with less relief than could have been procured through more vigorous negotiation. In such cases, the class members may find that substantial rights have been bargained away in exchange for relief which inures" }, { "docid": "13627465", "title": "", "text": "of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (internal citations omitted), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000); see also Wal-Mart Stores, 396 F.3d at 117-19 (applying Grinnell factors in considering approval of settlement). The weight given to any particular factor varies based on the facts and circumstances of the case. 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1797.1, at 77 (3d ed. 2005). Public policy, of course, favors settlement. Wal-Mart Stores, 396 F.3d at 116-17; accord Williams v. First Nat’l Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910) (“Compromises of disputed claims are favored by the courts.”); TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 461 (2d Cir.1982) (noting “the paramount policy of encouraging settlements”). Consequently, when evaluating a settlement agreement, the court is not to substitute its judgment for that of the parties, nor is it to turn consideration of the adequacy of the settlement “into a trial or a rehearsal of the trial.” Grinnell, 495 F.2d at 462. “Rather, the Court’s responsibility is to reach an intelligent and objective opinion of the probabilities of ultimate success should the claims be litigated and to form an educated estimate of the complexity, expense and likely duration of such litigation and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise.” In re Met. Life Derivative Litig., 935 F.Supp. 286, 292 (S.D.N.Y.1996) (quoting Lewis v. Newman, 59 F.R.D. 525, 527-28 (S.D.N.Y.1973) (internal quotation marks and ellipsis omitted)). In this case, the fairness and reasonableness of the ASA has been challenged on the basis that it would release claims not properly before the Court. The Second Circuit has observed that “[b]road class action settlements are common,” and that consequently “[pjlaintiffs in a class action may release claims that were or could have been pled in exchange for settlement relief.” Wal-Mart Stores, 396 F.3d at 106. But the Second Circuit has recognized that there are limits. First, “class" }, { "docid": "20436383", "title": "", "text": "to resolve bona fide disputes. See Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 n. 8 (11th Cir.1982); Reyes, 2011 WL 4599822, at *6. Typically, courts regard the adversarial nature of a litigated FLSA ease to be an adequate indicator of the fairness of the settlement. Lynn’s Food Stores, 679 F.2d at 1353-54. If the proposed FLSA settlement reflects a reasonable compromise over contested issues, it should be approved. Id. at 1354; Reyes, 2011 WL 4599822, at *6. In this ease, the settlement was the result of arm’s-length negotiation involving vigorous back and forth. Swartz Decl. ¶ 13. During the entire process, Plaintiffs and Defendant were represented by counsel experienced in wage and hour law. Accordingly, the Settlement Agreement resolves a clear and actual dispute under circumstances supporting a finding that is fair and reasonable. The Court hereby approves the FLSA settlement. C. Dissemination of Notice Pursuant to the Preliminary Approval Order, the Rule 23 and FLSA Notices were sent by first-class mail to each respective Class Member at his or her last known address (with re-mailing of returned Notices for which new addresses could be located). The Court finds that the Rule 23 and FLSA Notices fairly and adequately advised Class Members of the terms of the Settlement, as well as the right of Rule 23 Class Member to opt out of or to object to the Settlement, and to appear at the fairness hearing conducted on March 19, 2013. Class Members were provided with the best notice practicable under the circumstances. The Court further finds that the Notices and their distribution comported with all constitutional require ments, including those of due process. The Court confirms Kurtzman Carson Consultants, LLC as the claims administrator. D. Attorneys’ Fees and Costs, and Service Awards On December 11, 2012, the Court appointed Outten & Golden LLP and Shavitz Law Group, P.A. as Class Counsel because they met all of the requirements of Federal Rule of Civil Procedure 23(g). See Damassia, 250 F.R.D. at 165 (Rule 23(g) requires the court to consider “the work counsel has done in identifying or" }, { "docid": "22435051", "title": "", "text": "The court went on to comment that it was satisfied that the amount offered them in settlement of their claim for legal services rendered is less than the Court would have awarded had it been required to decide the issue of fees, but not too small that it will discourage attorneys in the future from undertaking class representation in cases of public interest. Therefore, the Court finds that the portion of the settlement agreement which deals with compensation for plaintiffs’ attorneys is fair, reasonable, and adequate under all of the circumstances of this case. Id. at 811. No party to this appeal raises any specific objections to this aspect of the district court’s order. The district court carefully considered each of the settlement terms outlined above as well as the strength of plaintiffs’ case on the merits, the complexity and expense of further litigation, the opinion of counsel for both sides, and all of the other factors which must be weighed when any class action settlement is presented for approval. We do not understand the intervening plaintiffs to argue that the court somehow misapplied the class action standard; rather, they argue that the class action standard should not have been applied at all. It is to this argument which we direct our primary attention. Ill A It is axiomatic that the federal courts look with great favor upon the voluntary resolution of litigation through settlement. U. S. v. McInnes, 556 F.2d 436, 441 (9th Cir. 1977); Du Puy v. Director, Office of Workers’ Compensation Programs, 519 F.2d 536, 541 (7th Cir. 1975), cert. de nied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976). In the class action context in particular, “there is an overriding public interest in favor of settlement.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). Settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources. Id. Settlement of a class action is not, however, an unmixed blessing. Balanced against the “overriding public interest" }, { "docid": "10253567", "title": "", "text": "in November of 1995, approximately six months before the court certified the class on April 30, 1996. Thus, the court recognizes that under General Motors, it must be especially diligent to ensure that class counsel have adequately protected the interests of absentees. After careful application of the Jepson factors to the facts of this case, the court concludes that the settlement proposed by class counsel is fair, reasonable and adequate. The case is made much closer by the exacting scrutiny required by the court of appeals in General Motors, especially when the facts before the district court in this case are compared to the facts presented to the district court in General Motors. Even under the stringent standard set out in that opinion for the approval of settlements in class action law suits, however, the court believes it is appropriate to approve the settlement in this case, especially if the law is to continue supporting early resolution of litigation through settlement. See Williams v. First Nat’l Bank of Pauls Valley, 216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910) (“Compromises of disputed claims are favored by the courts----”) A. The Value of the Settlement to the Class Members If courts are to encourage and favor settlements, at the end of the day the best any court can do for absentee class members in a class action seeking damages, such as this one, is to ensure that they are receiving settlement commensurate with the value of their stake in the litigation. Thus, the most important factor in evaluating whether a settlement is fair, reasonable and adequate is the value of the settlement to the class. See Petruzzi’s, Inc. v. Darling-Delaware Co., Inc., 880 F.Supp. 292, 296 (M.D.Pa.1995); Richard L. Marcus & Edward F. Sherman, Complex Litigation 535 (2d ed.1992). As Chief Judge Posner has stated, “[a] settlement is fair to the plaintiffs in a substantive sense ... if it gives them the expected value of their claim if it went to trial.” Mars Steel Corp. v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 834 F.2d 677," }, { "docid": "12294254", "title": "", "text": "75 F.3d 1191, 1200 (7th Cir.1996) (citation omitted); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984); In re Chicken Antitrust Litig. American Poultry, 669 F.2d 228, 238 (5th Cir.1982). Indeed, a “just result is often no more than an arbitrary point between competing notions of reasonableness.” In re Corrugated Container Antitrust Litig. (II), 659 F.2d 1322, 1325 (5th Cir.1981), cert. denied sub nom. CFS Continental, Inc. v. Adams Extract Co., 456 U.S. 998, 102 S.Ct. 2283, 73 L.Ed.2d 1294 (1982), and cert. denied sub nom. Three J Farms, Inc. v. Adams Extract Co., 456 U.S. 1012, 102 S.Ct. 2308, 73 L.Ed.2d 1309 (1982). Not only does settlement conserve judicial resources, but the parties may gain significantly from avoiding the costs and risks of a lengthy and difficult trial. See In re First Commodity Corp. of Boston Customer Accounts Litig., 119 F.R.D. 301, 307 (D.Mass.1987); Florida Trailer & Equip. Co. v. Deal, 284 F.2d 567, 571 (5th Cir.1960) (“the very uncertainties of outcome in litigation, as well as the avoidance of wasteful litigation and expense, lay behind the ... power to compromise”). 11. Class actions, with their notable uncertainties, difficulties of proof, and length, make application of this policy in favor of settlement particularly appropriate. Cotton v. Hinton, 559 F.2d at 1331; In re Novacare Sec. Litig., [Current Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 98,930 at 93,498, 1995 WL 605533 at *3 (E.D.Pa. Oct.13, 1995) (“The law favors settlement, particularly in class actions a,nd other complex cases where substantial judicial resources can be conserved by avoiding formal litigation.”) (quoting GM Trucks Litig., 55 F.3d at 784). 12. Taking into account the strong public policy favoring settlement, trial courts are directed to approve class action settlements that are “fair, adequate, and reasonable.” Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118 (3d Cir.1990); Walsh v. Great Atlantic & Pacific Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983); Eichenholtz v. Brennan, 52 F.3d at 482. In making that determination, the trial courts have “wide discretion.” Shlensky v. Dorsey, 574 F.2d 131, 147 (3d Cir.1978). 13. In the Third" }, { "docid": "10906965", "title": "", "text": "reasonable, not whether one could conceive of a better settlement.” Id.; see also MetLife, 1999 U.S. Dist. LEXIS 22688, at *75. It is well established, that the law has long encouraged settlement. Williams v. First Nat’l Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910); In re Warfarin Sodium Antitrust Litig., 391 F.3d at 534-35. This proposition is equally supported, in the case at hand, by the fact that other courts around the nation have granted final approval to insurance sales practices settlements similar to this. See, e.g., Grove v. Principal Mut. Life Ins. Co., 200 F.R.D. 434 (S.D.Iowa 2001); Snell v. Allianz Life Ins. Co. of N. Am., No. Civ. 97-2784 RLE, 2000 WL 1336640, 2000 U.S. Dist. LEXIS 1336640 (D.Minn. Sept. 8, 2000); Manners v. Am. Gen. Life Ins. Co., No. Civ. A. 3-98-0266, 1999 WL 33581944, 1999 U.S. Dist. LEXIS 22880 (M.D.Tenn. Aug. 11, 1999); Bussie v. Allmerica Fin. Corp., 50 F.Supp.2d 59 (D.Mass.1999); In re Metropolitan Life Ins. Co. Sales Practices Litig., MDL 1091, 1999 U.S. Dist. LEXIS 22688 (W.D.Pa. Dec. 28, 1999); In re Mfrs. Life Ins. Co. Premium Litig., No. 1109, 96-CV-230 BTM (AJB), 1998 WL 1993385, 1998 U.S. Dist. LEXIS 23217 (S.D.Cal. Dec. 21, 1998); In re Prudential Ins. Co. of America Sales Practices Litig., 962 F.Supp. 450 (D.N.J.1997), aff'd, 148 F.3d 283 (3d Cir.1998); Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D. 54 (D.Mass.1997). Moreover, this type of insurance sales practices settlement in which the Class Members are offered a choice of (a) a claim review process that offers the potential for full benefit of the bargain relief, or (b) general policy relief that is available automatically to those who do not wish to go through the claim review process, has repeatedly been approved in courts around the nation. As explained below, after carefully weighing the Girsh factors and considering the objections, the Court determines that in the current case the Proposed Settlement is indeed fair, reasonable, and adequate and should be approved. A. Complexity, Expense and Duration of the Litigation Where the complexity, expense and duration" }, { "docid": "18470244", "title": "", "text": "S.Ct. 124, 46 L.Ed.2d 93 (1975); Luevano v. Campbell, 93 F.R.D. 68, 85 (D.D.C.1981) (same). It is well-established that courts assume a limited role when reviewing a proposed class action settlement. In re National Student Marketing Litigation, 68 F.R.D. 151, 155 (D.D.C.1974). They should not substitute their judgment for that of counsel who negotiated the settlement. Sommers v. Abraham Lincoln Federal Savings & Loan Ass’n, 79 F.R.D. 571, 576 (E.D.Pa.1978). Rather, courts favor the resolution of disputes through voluntary compromise, Williams v. First Nat’l Bank of Pauls Valley, 216 U.S. 582, 585, 30 S.Ct. 441, 443, 54 L.Ed. 625 (1910), and, therefore, strongly encourage settlements. Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312 (7th Cir.1980). In the context of class actions, settlement is particularly appropriate given the litigation expenses and judicial resources required in many such suits. Id. at 313; Sunrise Toyota v. Toyota Motor Co., Ltd., 1973-1 Trade Cases ¶ 74,398 at 93,821,1973 WL 778 (S.D.N.Y.1973). “Absent evidence of fraud or collusion, such settlements are not to be trifled with.” Granada Investments, Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir.1992). There is no obligatory test that this Court must perform in evaluating the fairness, reasonableness and adequacy of the settlement proposal presently before it. However, courts—most notably the United States Court of Appeals for the Third Circuit—have looked to a number of factors as relevant to determining the fairness of a proposed settlement. See Girsh, 521 F.2d at 157; In re National Student Marketing Litigation, 68 F.R.D. at 155. Known as the Nine-factor Girsh test, the following factors should be examined to ensure that the proposed settlement is fair, reasonable and adequate: (1) Adequacy of Settlement in Light of Best Possible Recovery; (2) Adequacy of Settlement in Light of All Risks of Litigation; (3) Complexity of Suit; (4) Reaction of Class; (5) Stage of Proceedings; (6) Risks of Establishing Liability; (7) Risks of Establishing Damages; (8) Risks of Maintaining Class Status; and (9) Ability to Withstand Greater Judgment. Having reviewed these factors, the Court concludes that the proposed settlement is" }, { "docid": "15908279", "title": "", "text": "prosecution to go forward. See Union of India II, A.I.R.1992 S.C. at 309. Crucially, however, it otherwise left the settlement orders “undisturbed.” Id. We note, finally, that it is axiomatic that the law encourages settlement of disputes. See, e.g., Williams v. First Nat’l Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910) (“Compromises of disputed claims are favored by the courts.... ”); Anita Founds. Inc. v. ILGWU Nat’l Ret. Fund, 902 F.2d 185, 190 (2d Cir.1990) (“Courts are wary of disturbing settlements, because they represent compromise and conservation of judicial resources, two concepts highly regarded in American jurisprudence.”); cf. Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1077 (7th Cir.1999) (explaining that “financial and judicial economy are at [the] core” of Fed.R.Civ.P. 68, which governs offer-of-judgment proceedings); Manko v. United States, 87 F.3d 50, 54 (2d Cir.1996) (noting that “[t]he primary purpose” of Fed. R.Evid. 408, which provides that certain evidence of settlement offers and negotiations is inadmissible, “is the promotion of the public policy favoring the compromise and settlement of disputes that would otherwise be discouraged with the admission of such evidence.”) (internal quotation marks omitted). The public interest in amicable resolution of cases is particularly strong in the context of mass tort and similar litigation. See In re Exxon Valdez, 229 F.3d 790, 795 (9th Cir.2000) (“[T]he general policy of federal courts to promote settlement before trial is even stronger in the context of large-scale class actions.”); In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 805 (3d Cir.1995) (noting “the urgency of [the public] policy [favoring settlements] in complex actions that consume substantial judicial resources and present unusually large risks for the litigants.”). Union Carbide bargained “finally [to] dispose of’ all claims “arising out of, relating to or concerned with the Bhopal Gas Leak Disaster.” Union of India I, A.I.R. 1990 S.C. at 276. Were we to allow the plaintiffs’ action against the defendants to proceed without clearer proof that it is not covered by the settlement agreement, we would not only fail to vindicate the reasonable expectations" }, { "docid": "14971303", "title": "", "text": "negotiating this agreement, Verizon bet on the certainty of settlement instead of gambling on the uncertainties of fixture legislative action. Verizon lost, and the District Court erred by letting it replay its hand. B. Presumption in Favor of Settlements The District Court’s decision also ran afoul of the strong presumption in favor of voluntary settlement agreements, which we have explicitly recognized with approval. See, e.g., Pennwalt Corp. v. Plough, 676 F.2d 77, 79-80 (3d Cir.1982). This policy is also evident in the Federal Rules of Civil Procedure and the District Court’s Local Rules, which encourage facilitating the settlement of cases. See, e.g., Fed.R.Civ.P. 16(a)(5) (one of the five purposes of a pretrial conference is to facilitate settlement); L.Cv.R. 16.2(B) (recognizing the burden litigation places on parties and mandating that they utilize a broad range of court-sponsored ADR processes); L.Cv.R. 23(C)(5) (including among matters to be discussed at pretrial conference the timing and plan for methods of alternative dispute resolution). This presumption is especially strong in “class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation.” GM Truck, 55 F.3d at 784. The strong judicial policy in favor of class action settlement contemplates a circumscribed role for the district courts in settlement review and approval proceedings. This policy also ties into the strong policy favoring the finality of judgments and the termination of litigation. Settlement agreements are to be encouraged because they promote the amicable resolution of disputes and lighten the increasing load of litigation faced by the federal courts. See D.R. by M.R. v. East Brunswick Bd. of Educ., 109 F.3d 896, 901 (3d Cir.1997). In addition to the conservation of judicial resources, the parties may also gain significantly from avoiding the costs and risks of a lengthy and complex trial. Id. By vacating its preliminary approval of the settlement and by granting Verizon a judgment on the pleadings, the District Court permitted Verizon to void its settlement agreement when it became unpalatable and digressed from the federal policy of encouraging class action settlement agreements. C. Changes in the Law after Settlement The" }, { "docid": "12294255", "title": "", "text": "expense, lay behind the ... power to compromise”). 11. Class actions, with their notable uncertainties, difficulties of proof, and length, make application of this policy in favor of settlement particularly appropriate. Cotton v. Hinton, 559 F.2d at 1331; In re Novacare Sec. Litig., [Current Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 98,930 at 93,498, 1995 WL 605533 at *3 (E.D.Pa. Oct.13, 1995) (“The law favors settlement, particularly in class actions a,nd other complex cases where substantial judicial resources can be conserved by avoiding formal litigation.”) (quoting GM Trucks Litig., 55 F.3d at 784). 12. Taking into account the strong public policy favoring settlement, trial courts are directed to approve class action settlements that are “fair, adequate, and reasonable.” Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118 (3d Cir.1990); Walsh v. Great Atlantic & Pacific Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983); Eichenholtz v. Brennan, 52 F.3d at 482. In making that determination, the trial courts have “wide discretion.” Shlensky v. Dorsey, 574 F.2d 131, 147 (3d Cir.1978). 13. In the Third Circuit, the nine factors identified in Girsh v. Jepson, 521 F.2d 153, 156-57 (3d Cir.1975), outline the standard to be applied in determining whether a settlement should be approved as “fair, adequate, and reasonable.” GM Trucks Litig., 55 F.3d at 785-86, 804-806; In re Chambers Development Sec. Litig., 912 F.Supp. 822, 836 (W.D.Pa.1995); Sanders v. U.S. Dept. of Housing and Urban Development, 872 F.Supp. 216, 220 (W.D.Pa.1994). These factors, as discussed in detail above, include (1) the complexity, expense and duration of the litigation; (2) the reaction of the class to settlement; (3) the stage of proceedings at which settlement is reached; (4) the risks of establishing liability at trial; (5) the risks of establishing damages; (6) the risks of maintaining the class throughout trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best possible recovery; and (9) the range of reasonableness of settlement in light of the attendant risks of litigation. 1. The Complexity, Expense and Duration of the" }, { "docid": "20436382", "title": "", "text": "respect to a settlement-a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion.’ ” Id. (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir.1972)). The seventh Grinnell factor weighs in favor of final approval. The Court hereby grants Plaintiffs’ Motion for Final Approval and finally approves the settlement as set forth in the Settlement Agreement. B. Approval of the FLSA Settlement Because, under the FLSA, “parties may elect to opt in but a failure to do so does not prevent them from bringing their own suits at a later date,” FLSA collective actions do not implicate the same due process concerns as Rule 23 actions. McKenna v. Champion Intern. Corp., 747 F.2d 1211, 1213 (8th Cir.1984); see Reyes, 2011 WL 4599822, at *6. Accordingly, the standard for approval of an FLSA settlement is lower than for a class action under Rule 23. Courts approve FLSA settlements when they are reached as a result of contested litigation to resolve bona fide disputes. See Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 n. 8 (11th Cir.1982); Reyes, 2011 WL 4599822, at *6. Typically, courts regard the adversarial nature of a litigated FLSA ease to be an adequate indicator of the fairness of the settlement. Lynn’s Food Stores, 679 F.2d at 1353-54. If the proposed FLSA settlement reflects a reasonable compromise over contested issues, it should be approved. Id. at 1354; Reyes, 2011 WL 4599822, at *6. In this ease, the settlement was the result of arm’s-length negotiation involving vigorous back and forth. Swartz Decl. ¶ 13. During the entire process, Plaintiffs and Defendant were represented by counsel experienced in wage and hour law. Accordingly, the Settlement Agreement resolves a clear and actual dispute under circumstances supporting a finding that is fair and reasonable. The Court hereby approves the FLSA settlement. C. Dissemination of Notice Pursuant to the Preliminary Approval Order, the Rule 23 and FLSA Notices were sent by first-class mail to each respective Class Member at his or her" } ]

[ { "docid": "23146388", "title": "", "text": "industry was less dependent than other industries on external financing.” Id. at 46. The Court of International Trade thereafter held that Commerce had identified substantial evidence to support its finding of a nexus between the Korean government’s program of general control over the Korean financial system and the provision of specific benefits to the steel industry in the form of preferential long-term loans. British Steel II, 941 F.Supp. at 130. Korean producers now appeal that decision. B. Analysis The general rule is that a countervailing duty (in addition to any other duty) shall be imposed if (1) the administering authority [Commerce] determines that - (A) a country under the Agreement, or (B) a person who is a citizen or national of such a country, or a corporation, association, or other organization organized in such a country, is providing, directly or indirectly, a subsidy with respect to the manufacture, production, or exportation of a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States, and (2) the Commission [International Trade Commission] determines that— (A) an industry in the United States— (i) is materially injured or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, then there shall be imposed upon such merchandise a countervailing duty, in addition to any other duty imposed, equal to the amount of the net subsidy. For purposes of this subsection and section 1671d(b)(1) of this title, a reference to the sale of merchandise includes the entering into of any leasing arrangement regarding the merchandise that is equivalent to the sale of the merchandise. 19 U.S.C. § 1671(a) (1988). The statute further provides that in order to countervail a governmental subsidy, Commerce must determine whether the bounty, grant, or subsidy in law or in fact is provided to a specific enterprise or industry, or group of enterprises or industries. Nominal general availability, under the terms" } ]

[ { "docid": "17861616", "title": "", "text": "The “reason to believe or suspect” standard first appeared in the legislative history for 19 U.S.C. § 1677b, which states that “in valuing such [nonmarket economy] factors, [Commerce] shall avoid using any prices which it has reason to believe or suspect may be dumped or subsidized prices.” See Omnibus Trade and Competitiveness Act of 1988, H.R. Conf. Rep. No. 100-576 at 590 (1988), reprinted in 1988 U.S.C.C.A.N. 1547,1623. In Fuyao II, the Court found that Commerce has a reason to believe or suspect that an input may be subsidized if it can demonstrate by specific and objective evidence that: (1) subsidies of the industry in question existed in the supplier countries during the period of investigation (“POI”); (2) the supplier in question is a member of the subsidized industry or otherwise could have taken advantage of any available subsidies; and (3) it would have been unnatural for a supplier to not have taken advantage of such subsidies. Fuyao II, 29 CIT at ---, 2005 WL 280437, *4. Commerce purported to apply this three-prong test in declining to use Changhong’s market economy purchases. See Def.’s Resp. at 26 (“[I]n accordance with Fuyao, Commerce placed upon the record ‘particular, specific, and objective evidence’ of generally-available non-specific export subsidies that the Thai [and] Korean ... governments provide all exporters, regardless of the product.”). Commerce’s justification for excluding the market economy purchases consists of selected portions of the Fuyao Glass Remand Determination listing the export subsidy programs it found to be available in Korea and Thailand: “For Korea the identified programs include: Duty Drawback, Export Credit and Short-Term Export Financing programs. For Thailand, the identified programs include: Export Packing Credits, Duty Exemption for Raw Materials, and Tax Certificate for Exporters subsidy programs.” See Def.’s Resp. at 37 (citing Fuyao Glass Remand Rede-termination at 29~32)(indicating that “[b]e-cause this list equally applies here, we have placed it on the record of the instant investigation.”) (internal citations omitted). A corresponding memorandum is also referenced, in which Commerce provided a brief description of each of the listed programs. See, e.g., Memorandum from Elizabeth Eastwood, Placing Information on the" }, { "docid": "17861662", "title": "", "text": "those countries maintain subsidy programs which distort export price. See Issues & Decision Mem. at 36. As a basis for this, Commerce pointed to a February 2002, memorandum entitled, \"NME Investigations: procedures for disregarding subsidized factor input prices.” Id. Therein, Commerce stated the policy advising that for \"all non-market economy investigations, factor input prices from Korea, [and] Thailand ... should be disregarded. ... Each of these countries maintain broadly available, non-industiy specific export subsidies. In prior decisions, we have found that the existence of these subsidies provides sufficient reason to believe or suspect that export prices from these countries are distorted.” Id. The policy relied upon by Commerce includes general findings regarding broadly available, non-industiy specific export subsidies in the countries, but does not explain the findings in any way. The court notes that Commerce’s reliance on this general policy in the context of a lawsuit is misplaced. This \"general policy” does not provide the court with the specific and objective evidence necessary for Commerce to meet its burden. Indeed, Commerce’s findings based on its policy appear to suffer from the infirmities identified in Fuyao. See e.g., Fuyao II, 29 CIT at-, 2005 WL 280437, *9. . An example of the information provided in Commerce's memorandum regarding the Korean subsidy program is presented in full: 1) Korea Among the many Korean subsidy programs listed were Duty Drawback on Non-Physically Incorporated Items and Excessive Loss Rates (\"Duty Drawback”), Export Credit Financing from the Export Import Bank of Korea (\"Korean Export Credit\"), and Short-Term Export Financing. The Duty Drawback subsidy program is described in part, as: \"The Government of Korea establishes an authorized loss rate for raw materials used in the manufacture of exported goods.... The Government of Korea reduces the amount of duty drawback received on the exported product to account for the sales of by-products produced from the excess raw materials used in the production of exported goods.” The Export Credit program is described, in part, as: “The National Investment Fund (NIF), which was established by the Government of Korea in 1973, is a source of funds for banks to" }, { "docid": "17861614", "title": "", "text": "Although Commerce may rely on surrogate values, its regulations provide that values based on actual purchases made by a respondent from market-economy suppliers, paid for in market economy currency, are to be preferred in valuing the factors of production. See 19 C.F.R. § 351.408(c)(1). Thus, in its Preliminary Determination, Commerce indicated that, in valuing inputs purchased from market economy suppliers, in most circumstances, it would use the actual price paid for these inputs. See Preliminary Determination, 68 Fed.Reg. 66,807-08. Commerce also stated, however, that where it has reason to believe or suspect that the price of an input is subsidized, it would select a surrogate value rather than use a price that might be distorted. See 19 U.S.C. § 1677b. As a result, in its calculations, the Department declined to use Chan-ghong’s market economy purchase prices for inputs purchased from Korea and Thailand because it found that those countries maintained broadly-available, non-industry specific subsidies. See Issues & Decision Mem. at 36-37. In its Final Determination, Commerce affirmed its position. See id. at 38 (stating that Commerce will disregard market economy purchases where they were made from “countries [that] maintain broadly-available, nonindustry-specific subsidies which may benefit all exports to all export markets.”). Changhong argues that in declining to use its purchases from the market economy countries of Korea and Thailand in the calculation of normal value, Commerce did not act in accordance with the precedent of this Court, or Commerce’s own practices. See Pl.’s Br. at 25-27. Specifically, Changhong argues that Commerce may disregard purchases made in market economy countries only if there is “particularized evidence showing that the prices paid ... have been distorted by subsidies,” and that the record did not support such findings in this case. Id. at 25. In support of this claim, plaintiff cites Fuyao Glass Industrial Group Co., Ltd. v. United States, 27 CIT-,-, 2003 WL 22996904 (Dec. 18, 2003) (not published in the Federal Supplement)(“Fuyao I”), and Fuyao Glass Industrial Group Co. v. United States, 30 CIT-,-, 2005 WL 280437 (Jan. 25, 2005) (not published in the Federal Supplement) (“Fuyao II”). Id. at 25-28." }, { "docid": "10718774", "title": "", "text": "adjustment that provides that it may select a different rate when the subsidy rate has increased in a subsequent administrative review. Plaintiffs’ Rule 56.2 Reply Brief, p. 18 (citations omitted). Furthermore, they contend that the individual program rates, individual company rates, and “all others” rates selected by the agency in this sunset review are lower than rates found in more recent administrative reviews. Thus, by relying on the initial, lower rates, Commerce predicted that revocation of the order would result in a reduction of countervailable benefits. Stated differently, the sunset results imply that revocation of the order would cause foreign governments to reduce the amount of subsidies provided to exporters. Simply put, this result makes no sense.... Id. at 19 (emphasis in original). The statute requires that the ITA inform the ITC of “the net countervailable subsidy that is likely to prevail if the order is revoked or the suspended investigation is terminated.” 19 U.S.C. § 1675a(b)(3). Moreover, the ITA “shall normally choose” a rate that was determined either in the original investigation or an administrative review of the particular program. Id. The legislative history explains further: ... The Administration intends that Commerce normally will select the rate from the investigation, because that is the only calculated rate that reflects the behavior of exporters and foreign governments without the discipline of an order ... in place. In certain instances, a more recently calculated rate may be more appropriate. For example, if dumping margins have declined over the life of an order and imports have remained steady or increased, Commerce may conclude that exporters are likely to continue dumping at the lower rates found in a more recent review. H.R. DoA No. 103-316, vol. 1, at 890-91. See also H.R.Rep. No. 103-826, pt. 1, at 64. The Sunset Policy Bulletin elaborates on the circumstances under which the agency may adjust the net countervailable subsidy. Specifically at issue is section III.B.3, which states in relevant part that section 752(b)(1)(B) of the Act provides that the [ITA] will consider whether any change in the program which gave rise to the net countervailable subsidy" }, { "docid": "16880600", "title": "", "text": "paying in market currency. Pl.’s Br. at 9. CMC thus challenges Commerce’s use of surrogate values for its hot-rolled alloy steel bar input instead of the actual price it paid. There is no indication on the record, nor is there an argument in the parties’ briefs that CMC and its supplier are affiliated. The exporting country is a market economy country. Normally, to construct NV for the final product, Commerce uses actual prices which an NME producer pays for the input from a market economy country since actual market prices are the best approximation of the input’s value. See 19 C.F.R. § 351.408(c)(1). However, in this case, both in the final stage of the twelfth administrative review and in the entire thirteenth administrative review, Commerce declined to use the actual prices CMC paid to the supplier for its steel because it claimed it had a “reason to believe or suspect” that the supplied steel was benefitting from subsidies, and the actual prices were thus distorted. See Preliminary Results at 35,940; Issues and Decision Memo at 9. To support its finding that the steel was subsidized, Commerce relied on an internal confidential memorandum, Market Economy Steel Memo (Nov. 7, 2001), in app. 4 to Pl.’s Br. The Market Economy Steel Memo lists various affirmative anti-dumping and countervailing duty findings applying to various steel products from the market economy country at issue. Also listed in the Market Economy Steel Memo is a negative finding from 1999 relating to one particular steel product, [[ ]], from the market economy country: Final Negative Countervailing Duty Determination: [[ ]] {“Final Negative Determination”). There are no specific antidumping or countervailing duty findings regarding the hot-rolled alloy steel bar that is at issue here. See Market Economy Steel Memo; Tr. at 11:7-11. However, during these antidumping or countervailing duty investigations, Commerce “discovered . . . not company specific” but generally available subsidies to steel producers in the concerned country, including directed credit, export industry facility loans, short-term export financing, and investment tax credits. Market Economy Steel Memo. Commerce maintains without further elaboration that “in two of the" }, { "docid": "17861615", "title": "", "text": "Commerce will disregard market economy purchases where they were made from “countries [that] maintain broadly-available, nonindustry-specific subsidies which may benefit all exports to all export markets.”). Changhong argues that in declining to use its purchases from the market economy countries of Korea and Thailand in the calculation of normal value, Commerce did not act in accordance with the precedent of this Court, or Commerce’s own practices. See Pl.’s Br. at 25-27. Specifically, Changhong argues that Commerce may disregard purchases made in market economy countries only if there is “particularized evidence showing that the prices paid ... have been distorted by subsidies,” and that the record did not support such findings in this case. Id. at 25. In support of this claim, plaintiff cites Fuyao Glass Industrial Group Co., Ltd. v. United States, 27 CIT-,-, 2003 WL 22996904 (Dec. 18, 2003) (not published in the Federal Supplement)(“Fuyao I”), and Fuyao Glass Industrial Group Co. v. United States, 30 CIT-,-, 2005 WL 280437 (Jan. 25, 2005) (not published in the Federal Supplement) (“Fuyao II”). Id. at 25-28. The “reason to believe or suspect” standard first appeared in the legislative history for 19 U.S.C. § 1677b, which states that “in valuing such [nonmarket economy] factors, [Commerce] shall avoid using any prices which it has reason to believe or suspect may be dumped or subsidized prices.” See Omnibus Trade and Competitiveness Act of 1988, H.R. Conf. Rep. No. 100-576 at 590 (1988), reprinted in 1988 U.S.C.C.A.N. 1547,1623. In Fuyao II, the Court found that Commerce has a reason to believe or suspect that an input may be subsidized if it can demonstrate by specific and objective evidence that: (1) subsidies of the industry in question existed in the supplier countries during the period of investigation (“POI”); (2) the supplier in question is a member of the subsidized industry or otherwise could have taken advantage of any available subsidies; and (3) it would have been unnatural for a supplier to not have taken advantage of such subsidies. Fuyao II, 29 CIT at ---, 2005 WL 280437, *4. Commerce purported to apply this three-prong test in" }, { "docid": "17861661", "title": "", "text": "1-2. . Defendant itself is unclear as to whether the data is six, seven, or eight months before the POI. While in its response defendant claims that the data is six months before the POI, Commerce, in its Issues and Decision Memorandum, indicates that the data is seven months before the POI. Neither document provides any citation establishing the actual dates for the information. . According to plaintiff, the largest quantity of units reported in Infodriveindia was 9,000 units. During the POI, Changhong produced [¶] ]] units of the subject CTVs for export to the United States alone. See PL's Br. at 20. . Commerce also relied upon what it calls its general policy, and a supporting memorandum, for disregarding subsidized factor input prices from Korea and Thailand. See Issues & Decision Mem. at 36-37; see also Def.’s Resp. at 25-27. In its Issues and Decision Memorandum, Commerce stated that it has a general policy of not including prices paid for inputs from Korea and Thailand because it has reason to believe or suspect that those countries maintain subsidy programs which distort export price. See Issues & Decision Mem. at 36. As a basis for this, Commerce pointed to a February 2002, memorandum entitled, \"NME Investigations: procedures for disregarding subsidized factor input prices.” Id. Therein, Commerce stated the policy advising that for \"all non-market economy investigations, factor input prices from Korea, [and] Thailand ... should be disregarded. ... Each of these countries maintain broadly available, non-industiy specific export subsidies. In prior decisions, we have found that the existence of these subsidies provides sufficient reason to believe or suspect that export prices from these countries are distorted.” Id. The policy relied upon by Commerce includes general findings regarding broadly available, non-industiy specific export subsidies in the countries, but does not explain the findings in any way. The court notes that Commerce’s reliance on this general policy in the context of a lawsuit is misplaced. This \"general policy” does not provide the court with the specific and objective evidence necessary for Commerce to meet its burden. Indeed, Commerce’s findings based on its" }, { "docid": "13062420", "title": "", "text": "30-33. The court agrees with CS Wind that the Fuyao Glass standard is one reasonable method for evaluating the sufficiency of the evidence upon which Commerce based its belief or suspicion that prices were subsidized. In this case, Commerce has met its burden under Fuyao Glass, albeit reluctantly. Commerce satisfied the first prong of the test by presenting evidence that widely available, non-industry specific subsidies existed in Korea during 2010, just months before the POI under review. I & D Memo at 40 & n. 247 (citing Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Bottom Mount Combination Refrigerator-Freezers from the Republic of Korea, C-580-866, at 14-16 (Mar. 16, 2012) (“Refrigerator-Freezers ”), available at http:// enforcement.trade.gov/frn/summary/ korea-soutlV2012-7217-l.pdf (last visited Mar. 20, 2014) (discussing short-term export insurance program); Issues and Decision Memorandum for the Countervailing Duty Administrative Review on Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea, C-580-818, at 17, 19-20 (Jan. 7, 2009) (“CORE”), available at http://enforcement.trade.gov/frn/ summary/korea-south/E9-633-l.pdf (last visited Mar. 20, 2014) (discussing eounter-vailable short-term export financing system, document/acceptance loans, and trade rediscount program in 2006)). At least with respect to the Refrigerator-Freezers determination, Commerce did not merely rely on the “existence, at some point in time, of the subsidy programs” in Korea, Sichuan Changhong Electric Co. v. United States, 30 CIT 1481, 1496, 460 F.Supp.2d 1338, 1352 (2006), but rather it identified almost contemporaneous findings of coun-tervailable subsidies. Thus, Commerce demonstrated with specific and credible evidence that contemporaneous, widely available export subsidies existed in Korea, thereby meeting the first prong of the Fuyao Glass test. Turning to the second prong of Fuyao Glass, Commerce has met this standard based on the same evidence discussed above for prong one because these prior countervailing duty determinations demonstrate that South Korea had broadly available, non-industry specific export subsidies for which exporters, including the suppliers of CS Wind, were eligible. See Si-chuan, 30 CIT at 1495-96, 460 F.Supp.2d at 1352-53 (finding that widely available, nonspecific export subsidies met the second prong of Fuyao Glass). If Korea had suddenly discontinued this export support program, this" }, { "docid": "16880619", "title": "", "text": "could reasonably be interpreted to support a suspicion that the prices CMC paid to its market economy supplier were distorted. Otherwise, this court may not reweigh the evidence or substitute its own judgment for that of the agency. See Granges Metallverken AB v. United States, 13 CIT 471, 474, 716 F. Supp. 17, 21 (1989) (citation omitted). Additionally, the agency is presumed to have considered all of the evidence in the record, and the burden is on the plaintiff to prove otherwise. Roses, Inc. v. United States, 13 CIT 662, 668, 720 F. Supp. 180, 185 (1989); Nat'l Ass’n of Mirror Mfrs. v. United States, 12 CIT 771, 779, 696 F. Supp. 642, 648 (1988). To support its contention that there is substantial evidence in the record, Commerce argues that the discovery of subsidies which are not company specific in the investigations of other steel products gave it reason to infer that CMC’s supplier alongside other steel producers in the relevant country may have benefitted from these so-called general subsidies. See Def.’s Sr. at 15. Commerce further argues that “the letter [from CMC’s supplier], at most, created a conflict in the record,” to which Commerce was entitled to give “minimal weight.”Id. at 16. CMC, on the other hand, points to contradictory evidence. First, “there are no current or prior countervailing duty orders in the United States or in China on the material input in question, hot-rolled bars and rods of bearing quality steel manufactured in [the exporting country].” Pl.’s Br. at 25 (citing Market Economy Steel Memo). Second, not only the steel input in question, but also CMC’s supplier was never investigated in any recent countervailing or anti-dumping duty investigations. See id. Third, “[i]n a recent countervailing duty case on [a steel input from the exporting country, Commerce] made a final negative countervailing duty determination.” Id. (citing Final Negative Determination). According to CMC, this finding would “obviously militate[ ] against the notion that there are ‘industry-wide’ subsidies conferring benefits on manufacturers of steel products.” Id. at 25-26. CMC is correct. Evidence exists in the record - Commerce’s own negative finding" }, { "docid": "16880620", "title": "", "text": "Commerce further argues that “the letter [from CMC’s supplier], at most, created a conflict in the record,” to which Commerce was entitled to give “minimal weight.”Id. at 16. CMC, on the other hand, points to contradictory evidence. First, “there are no current or prior countervailing duty orders in the United States or in China on the material input in question, hot-rolled bars and rods of bearing quality steel manufactured in [the exporting country].” Pl.’s Br. at 25 (citing Market Economy Steel Memo). Second, not only the steel input in question, but also CMC’s supplier was never investigated in any recent countervailing or anti-dumping duty investigations. See id. Third, “[i]n a recent countervailing duty case on [a steel input from the exporting country, Commerce] made a final negative countervailing duty determination.” Id. (citing Final Negative Determination). According to CMC, this finding would “obviously militate[ ] against the notion that there are ‘industry-wide’ subsidies conferring benefits on manufacturers of steel products.” Id. at 25-26. CMC is correct. Evidence exists in the record - Commerce’s own negative finding for one steel product from the country at issue - compelling the conclusion that all steel products from that country could not have benefitted from general subsidies. See Final Negative Determination. This evidence is not merely a contradictory piece of evidence to which Commerce is entitled to give minimal weight. On the contrary, this evidence directly undermines Commerce’s justification of using surrogate values in CMC’s case. If this specific finding is an anomaly, Commerce must explain to this court why it is an anomaly. Otherwise, Commerce cannot reasonably claim that, if one or two steel products in the exporting country were subsidized, then all must have been because at least one was found by Commerce itself not to have been subsidized. Conjectures are not facts and cannot constitute substantial evidence. China Nat’l Arts and Crafts Imp. and Exp. Corp. v. United States, 15 CIT 417, 424, 771 F. Supp. 407, 413 (1991) (“Guesswork is no substitute for substantial evidence in justifying decisions.”). In this case, it may be that there in fact exists a countervailable" }, { "docid": "4717516", "title": "", "text": "to believe or suspect that the prices may have been subsidized. On remand, the court ordered Commerce to justify the refusal to accept the raw material prices by demonstrating: by specific and objective evidence that (1) subsidies of the industry in question existed in the supplier countries during the period of investigation; (2) the supplier in question is a member of the subsidized industry or otherwise could have taken advantage of any available subsidies; and (3) it would have been unnatural for a supplier to not have taken advantage of such subsidies. In Sichuan Changhong the court considered Commerce’s finding that Korean and Thai inputs may have been subsidized and ordered Commerce to make findings under the Fuyao Glass criteria. Sichuan Changhong, 460 F.Supp.2d at 1350-51. Upon remand, Commerce reopened the record and provided relevant evidence of the alleged subsidy programs. In this case, APP-China argued that Commerce must cite evidence establishing that the particular inputs were subsidized in fact. Commerce disagreed. [Commerce] is not required to conduct a formal investigation with respect to multiple countries to ensure that prices are subsidized. Rather, it is sufficient if [Commerce] has “substantial, specific, and objective evidence in support of its suspicion that the prices are distorted.” See China Nat’l Mach. Imp. & Exp. Corp. v. United States, 293 F.Supp.2d 1334, 1339 (CIT 2003) (emphasis in original); H.R. Conf. Rep. No. 100-576, at 590 [ (1988), reprinted in 1988 U.S.Code, Cong., Admin. News 1547, 1623]. APP-China’s suggestion that [Commerce] cannot rely upon its finding in other proceedings and is instead required to conduct a full blown reinvestigation of export subsidies in Thailand and Korea in the context of this antidumping duty investigation is unsupported and would [be] unadministrable, particularly in light of the statutory deadlines for completing antidumping investigations. Therefore, [Commerce] is instructed by Congress to base its decision on information that is available to it at the time it is making its determination. Cmt. 17, I & D Memo at 44-45 (footnotes omitted). Commerce tries to distinguish Fuyao Glass because there the court focused on Commerce’s statement that it had found that" }, { "docid": "3608002", "title": "", "text": "the data Commerce did not exclude, Dongyuan fails to present an argument grounded in record evidence. Faced with impérfect sets of data, Commerce permissibly chose the Thai data, concluding that “the Indonesian and Philippine data for stainless steel coil do not constitute' the best information available to value stainless steel cod because the data from those countries were only available at the 6-digit HTS level and do not make any distinction for grade of stainless steel coil.” Remand Redeterm. 5. Further to its argument that the Thai import data are distorted, Dongyuan contends that the domestic Thai market for cold-rolled steel coil is distorted by government subsidies provided to POSCO Thai-nox (“POSCO”), which produces stainless steel in Thailand. Dongyuan’s Comments 14-19. Dongyuan submits that POSCO is the only manufacturer and distributor of cold-rolled stainless steel coil in Thailand and that it received both generally available export subsidies and specific subsidies under Thailand’s Investment Promotion Act (“IPA”) for “the business relating to the manufacturing of cold-rolled stainless steel.” Id. at 15. Dongyuan objects that Commerce failed to follow its policy of disregarding prices that it has “reason to believe or suspect” are subsidized. Id. at 16. For evidence of the distortion of the domestic stainless steel market, Dongyuan relies on a 2011 POSCO financial state ment disclosing that under the IPA “ ‘the Company was granted certain promotional privileges in the business relating to the manufacturing of cold-rolled stainless steel’ ... including the ‘exemption from import duty on imported machinery and equipment’ which the Department has found countervailable,” Dongyuan’s Comments 15-16 (citing 2011 POSCO Annual Report) (footnote omitted). Commerce did not consider the POSCO financial statement to be sufficient record evidence upon which it could conclude “that the cold-rolled steel market in Thailand as a whole is distorted because of this subsidization.” Remand Redeterm, 17. Although acknowledging in the Remand Re-determination that “we found sections of the IPA to be countervailable in a previous determination,” Commerce noted that “we never initiated a countervailing duty investigation of POSCO itself, nor have we made a determination that POSCO is a public authority whose" }, { "docid": "13062419", "title": "", "text": "Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In Fuyao Glass, the court held that Commerce must justify its belief or suspicion of price subsidization with specific and objective evidence. Fuyao Glass Indus. Grp. v. United States, 29 CIT 109, 114, 2005 WL 280437 (2005). Under the standard applied in that case, Commerce was required to show: “(1) subsidies of the industry in question existed in the supplier countries during the [POI]; (2) the supplier in question is a member of the subsidized industry or otherwise could have taken advantage of any available subsidies; and (3) it would have been unnatural for a supplier not to have taken advantage of such subsidies.” Id. CS Wind alleges that under Fuyao Glass Commerce has not met its burden in justifying its “reason to believe or suspect” that CS Wind’s purchase prices were tainted by subsidies. PI. Br. 34-37. The government primarily responds by claiming that Fuyao Glass is not binding precedent and has been ignored consistently by Commerce. Def. Resp. 30-33. The court agrees with CS Wind that the Fuyao Glass standard is one reasonable method for evaluating the sufficiency of the evidence upon which Commerce based its belief or suspicion that prices were subsidized. In this case, Commerce has met its burden under Fuyao Glass, albeit reluctantly. Commerce satisfied the first prong of the test by presenting evidence that widely available, non-industry specific subsidies existed in Korea during 2010, just months before the POI under review. I & D Memo at 40 & n. 247 (citing Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Bottom Mount Combination Refrigerator-Freezers from the Republic of Korea, C-580-866, at 14-16 (Mar. 16, 2012) (“Refrigerator-Freezers ”), available at http:// enforcement.trade.gov/frn/summary/ korea-soutlV2012-7217-l.pdf (last visited Mar. 20, 2014) (discussing short-term export insurance program); Issues and Decision Memorandum for the Countervailing Duty Administrative Review on Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea, C-580-818, at 17, 19-20 (Jan. 7, 2009) (“CORE”), available at http://enforcement.trade.gov/frn/ summary/korea-south/E9-633-l.pdf (last visited Mar. 20, 2014) (discussing eounter-vailable short-term export" }, { "docid": "19578261", "title": "", "text": "without further investigation if [Commerce] has determined that broadly available export subsidies existed or particular instances of subsidization occurred.\" Pub. L. No. 114-27, § 505(b), 129 Stat. at 386 (amending § 1677b(c) ). By regulation, \"[Commerce] will consider a subsidy to be an export subsidy if the Secretary determines that eligibility for, approval of, or the amount of, a subsidy is contingent upon export performance.\" 19 C.F.R. § 351.514(a). Substantial evidence supports Commerce's determination that the Oceana Report is the best available information on the record to value the surrogate financial ratios. Surapon and Kiang Huat's financial statements reveal that each received export subsidies under Thailand's Investment Promotion Act. See J.A. 501 (stating, in Kiang Huat's financial statement, \"[b]y virtue of the provisions of the ... Investment Promotion Act ..., [Kiang Huat] ha[s] been granted privileges by the Board of Investment relating to manufacturing of frozen seafood products\" and listing certain exemptions), 603 (providing similar language in Surapon's financial statement). Commerce has previously determined that subsidies provided under Thailand's Investment Promotion Act are countervailable export subsidies pursuant to § 351.514(a) because the benefits provided under that statute are export contingent. See J.A. 691-92 & n.25 (first citing Certain Frozen Warmwater Shrimp from Thailand , 78 Fed. Reg. 50,379 (Dep't of Commerce Aug. 19, 2013) ) (final neg. determination); then citing Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Frozen Warmwater Shrimp from Thailand, Case No. C-549-828, at 9, 19-22 (Dep't of Commerce Aug. 12, 2013), https://enforcement.trade.gov/frn/summary/thailand/2013-20166-1.pdf (finding that certain Investment Promotion Act subsidies satisfied the definition of countervailable subsidies under § 1677(5A) ). The Chinese Respondents do not challenge this finding. See generally Appellants' Br. Therefore, under the TPEA, Commerce properly questioned the reliability of the Thai Financial Statements as tainted by countervailable export subsidies. See Pub. L. No. 114-27, § 505(b), 129 Stat. at 386 (allowing Commerce to \"disregard price or cost values ... if [Commerce] has determined that broadly available export subsidies existed\"); CS Wind Viet. Co. v. United States , 832 F.3d 1367, 1374-75 (Fed. Cir. 2016) (holding that, where" }, { "docid": "18668180", "title": "", "text": "Memorandum Opinion and Order Newman, Senior Judge: Plaintiffs, the Royal Thai Government (“RTG”) and TTU Industrial Corp., brought this action to challenge the final results of the administrative review in Carbon Steel Butt-Weld Pipe Fittings from Thailand: Final Results of Countervailing Duty Review, 57 Fed. Reg. 5,248 (February 13, 1992) (“Butt-WeldReview”)- This court previously held that the determination of the International Trade Administration of the Department of Commerce (“Commerce”) was unsupported by substantial evidence on the record and remanded the case to Commerce to supplement the record with missing documentation provide further explanation for Commerce’s selection of a new country-wide benchmark for short-term financing, based upon the evidence and analysis contained in the record of Steel Wire Rope from Thailand, 56 Fed. Reg. 46,299 (September 11, 1991), in which Commerce initially selected the new benchmark. The court’s prior decision is reported at Royal Thai Government v. United States, 17 CIT 534, 824 F. Supp. 1089 (1993), familiarity with which is presumed. On August 6, 1993, Commerce issued its Final Results of Redeter-mination Pursuant to Court Remand, (“Remand Results”), which plaintiffs now contest. The court holds that Commerce’s new benchmark methodology is reasonable and that Commerce’s determination in Butt-Weld Review, as further explained in the Remand Results, is supported by substantial evidence on the record. This action was commenced under 19 U.S.C. § 1516a(a)(2)(B)(iii). Exclusive jurisdiction is conferred upon the court by 28 U.S.C. § 1581(c). Background This matter involves an administrative review by Commerce of a countervailing duty order pursuant to section 751 (a) of the Tariff Act of 1930,19 U.S.C. § 1675(a). The order followed the final results of a countervailing duty investigation in Carbon Steel Butt-Weld Pipe Fittings from Thailand, 55 Fed. Reg. 1,695 January 18, 1990), in which Commerce determined that the RTG’s Export Packing Credits program (“EPC”) constituted a subsidy that provided to exporters low interest, short-term loans at preferential rates. In its investigations, Commerce quantifies the benefit of a counter-vailable interest rate subsidy by comparing the rate for the subsidized to a “benchmark” rate. The benchmark rate theoretically reflects the interest rates that a Thai" }, { "docid": "17861618", "title": "", "text": "Record Regarding Subsidy Programs In the Investigation of Certain Color Television Receivers from the People’s Republic of China (Apr. 12, 2004) (P.R. 544) (“Eastwood Memorandum”) at 29. Assuming that Commerce is able, on remand, to satisfy prong-1 of the Fuyao test, the court finds that Commerce has provided sufficient evidence to meet prong-2 of the test, i.e., “the supplier in question is a member of the industry or otherwise could have taken advantage of any available subsidies.” See Fuyao II, 29 CIT at-, 2005 WL 280437, *4. In the Eastwood Memorandum, Commerce pointed to record evidence indicating that the programs listed were non-product specific and non-industry specific. See Eastwood Mem. at 31, 32 (“None of these programs in any of these three countries are specific to any particular type of product.... Further, each of these programs are available to any company engaged in export activities.”). The contents of the memorandum, i.e., the listed subsidy programs and their description and corresponding explanation, are sufficient to demonstrate that the supplier in question could have taken advantage of available subsidies. In other words, because the described subsidy programs were non-industry specific, they fulfill the requirements of prong-two. Although being generally available and non-industry specific provides some support of Commerce’s reasonable belief or suspicion that the inputs may be subsidized in the instant matter, this information alone is insufficient to demonstrate the specific and objective evidence that the inputs may have been subsidized. First, Commerce has failed to show that the subsidies existed in the supplier countries during the period of investigation, as is demanded by prong one. Instead, Commerce has established the existence, at some point in time, of the subsidy programs in the subject countries. With respect to Korea, Commerce indicated only that certain of the subsidy programs were established prior to the POI. See, e.g., id. at 30 (“The National Investment Fund (NIF) ... was established by the Government of Korea in 1973....”). No date information at all was provided as to Thailand. Id. It is simply not reasonable to assume that subsidy programs, once established, exist in perpetuity. Because Commerce" }, { "docid": "18894184", "title": "", "text": "Electric Industries Co. v. United States, 823 F.2d 505, 506 (Fed.Cir. July 2, 1987). Plaintiffs’ position is that, although the ITA has some discretion whether or not to revoke the outstanding countervailing-duty order, this authority is limited by facts and circumstances of the kind herein. They argue that, since the ITA has determined that they \"never received countervailing subsidies and therefore could not possibly 'resume’ receipt of such subsidies” , there could be \"no likelihood of resumption” as specified in the regulation, and, consequently, denial of revocation was an abuse of its limited authority. See Plaintiffs’ Brief, pp. 24-26. Although accurate in asserting that something non-existent cannot be \"resumed”, plaintiffs’ conclusion that therefore \"the ITA’s discretionary authority would appear to be inapplicable to the instant case” does not necessarily follow. First, the ITA has no obligation under the statute or its regulation, supra, to make a determination as to whether firms like the plaintiffs have applied for or received benefits at times other than during an administrative-review period, and the defendant disputes their contention that the ITA did, in fact, determine that the countervailable benefits had never been bestowed upon the plaintiffs. Moreover, \"resumption”, as used in the regulation, can be construed to apply to the subsidization of the merchandise in question rather than individual manufacturers thereof. Second, even assuming the plaintiffs had, as they claim, satisfied all of the requirements for revocation contained in section 355.42, the ITA was not required to grant their request. Both the regulation and the statute simply state that an order may be revoked. Finally, contrary to plaintiffs’ restrictive reading of the regulation, the court concludes that the ITA’s authority to determine the lack of likelihood of future subsidization, and ultimately whether to grant revocation, though not unbounded, is not circumscribed by lack of evidence of prior enjoyment of benefits. Although history of subsidization can enter into its likelihood-of-resumption analysis, the ITA’s discretion is not divested by one found favorable to an applicant for revocation. Here, for example, the plaintiffs received no benefits during the period encompassing the investigation and administrative reviews, January 14," }, { "docid": "17861619", "title": "", "text": "available subsidies. In other words, because the described subsidy programs were non-industry specific, they fulfill the requirements of prong-two. Although being generally available and non-industry specific provides some support of Commerce’s reasonable belief or suspicion that the inputs may be subsidized in the instant matter, this information alone is insufficient to demonstrate the specific and objective evidence that the inputs may have been subsidized. First, Commerce has failed to show that the subsidies existed in the supplier countries during the period of investigation, as is demanded by prong one. Instead, Commerce has established the existence, at some point in time, of the subsidy programs in the subject countries. With respect to Korea, Commerce indicated only that certain of the subsidy programs were established prior to the POI. See, e.g., id. at 30 (“The National Investment Fund (NIF) ... was established by the Government of Korea in 1973....”). No date information at all was provided as to Thailand. Id. It is simply not reasonable to assume that subsidy programs, once established, exist in perpetuity. Because Commerce failed to indicate that the subsidies existed during the October 1, 2002 — March 31, 2003 POI, it did not provide the specific and objective evidence required under prong-one of the Fuyao test. Second, the court finds that Commerce failed to establish the third-prong of the Fuyao test. The third prong requires a relatively minimal showing by Commerce, i.e., that it “would have been unnatural for a supplier not to have taken advantage of any available subsidies.” See Fuyao II, 29 CIT at-, 2005 WL 280437, *4. Previously, this Court has found this prong satisfied by a showing of “the competitive nature of market economy countries.” Id. at 24. Contrary to Commerce’s insistence, however, the burden with respect to this finding is not on plaintiff. See Def.’s Resp. at 25 (“[T]he burden shifts to the respondent to demonstrate that the supplier did not take advantage of those subsidies.”). Indeed, prong three of the Fuyao test specifically requires that “Commerce must demonstrate by specific and objective evidence that ... it would have been unnatural for a" }, { "docid": "16880601", "title": "", "text": "9. To support its finding that the steel was subsidized, Commerce relied on an internal confidential memorandum, Market Economy Steel Memo (Nov. 7, 2001), in app. 4 to Pl.’s Br. The Market Economy Steel Memo lists various affirmative anti-dumping and countervailing duty findings applying to various steel products from the market economy country at issue. Also listed in the Market Economy Steel Memo is a negative finding from 1999 relating to one particular steel product, [[ ]], from the market economy country: Final Negative Countervailing Duty Determination: [[ ]] {“Final Negative Determination”). There are no specific antidumping or countervailing duty findings regarding the hot-rolled alloy steel bar that is at issue here. See Market Economy Steel Memo; Tr. at 11:7-11. However, during these antidumping or countervailing duty investigations, Commerce “discovered . . . not company specific” but generally available subsidies to steel producers in the concerned country, including directed credit, export industry facility loans, short-term export financing, and investment tax credits. Market Economy Steel Memo. Commerce maintains without further elaboration that “in two of the three recent [pertinent] investigations, [these general subsidies] are greater than de minimis.” Tr. at 16:2-4. There is no record evidence of a generally available subsidy verified in the case of hot-rolled alloy steel bar from the country in question as Commerce has never specifically investigated this merchandise. See Market Economy Steel Memo. In addition, Commerce never specifically verified whether CMC’s supplier had ever taken advantage of any generally available subsidies for this or any other steel product. See Tr. at 17:21-25 to 18:1-16. Commerce nevertheless believes that CMC’s supplier may have (or must have) benefitted from generally available subsidies resulting in a distortion in the prices of hot-rolled alloy steel bar and, therefore, such prices cannot properly be used in the NV calculations for the cups and cones CMC sold in the United States. The contention is that “as a matter of commonsense, we can assume that no one is going to leave money on the table. [Companies] are going to take advantage of a program that’s out there and exists.” Tr. at 30:24-25 to" }, { "docid": "21461324", "title": "", "text": "subsidized activity must be examined on an independent basis. Commerce’s determination is sustained. SNPE’s last complaint concerns Commerce’s determination certain GOF tax and non-tax regional incentive programs constituted countervailable domestic subsidies. As applicable to this case, SNPE contends the language in 19 U.S.C. § 1677(5)(B), which defines a subsidy as that which is provided to a “group of enterprises or industries” is ambiguous and does not include regional preferences. According to SNPE, such an interpretation would conflict with the GATT, which gave rise to the current countervailing duty law. SNPE alludes to Article 11 of the Agreement on Interpretation and Application of Articles VI, XVI, and XXII of the GATT. This section deals with subsidies and countervailing duty measures. It provides, in pertinent part, as follows: Article 11. — Subsidies other than export subsidies. 1. Signatories recognize that subsidies other than export subsidies are widely used as important instruments for the promotion of social and economic policy objectives and do not intend to restrict the right of signatories to use such subsidies to achieve these and other important policy objectives, which they consider desirable. Signatories note that among such objectives are: a) the elimination of industrial, economic and social disadvantages of specific regions.... Agreement on Interpretation and Application of Articles VI, XVI, and XXII of the General Agreement on Tariffs and Trade, April 12, 1979, part I, article 11, 31 UST 532, TIAS No. 9619. SNPE asserts that because the definition of subsidy in the statute is unclear with respect to regional programs, there is no authority for countervailing such programs. Therefore, continues SNPE, Article 11 of the GATT controls and prohibits the countervailing of regional GOF tax and non-tax incentive programs. Commerce challenges the procedural merit of SNPE’s GATT argument as not having been raised at the administrative level. Commerce argues “although SNPE did on several occasions during the administrative proceedings contend that the amount of the subsidies received ... should be calculated differently ... SNPE never argued that the countervailing of domestic subsidies was prohibited by GATT.” Defendant’s Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record," } ]

[ { "docid": "22661692", "title": "", "text": "J., concurring in part and dissenting in part), any more than it squares with “‘evolving standards of decency,’” Estelle, supra, at 102 (quoting Trop v. Dulles, 356 U. S. 86,101 (1958) (plurality opinion)). Being violently assaulted in prison is simply not “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, supra, at 347. It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety. Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious,” Wilson, supra, at 298; see also Hudson v. McMillian, supra, at 5; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities,” Rhodes, supra, at 347. For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. See Helling, supra, at 35. The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Wilson, 501 U. S., at 297 (internal quotation marks, emphasis, and citations omitted). To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” Ibid.; see also id., at 302-303; Hudson v. McMillian, supra, at 8. In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety, Wilson, supra, at 302-303; see also Helling, supra, at 34-35; Hudson v. McMillian, supra, at 5; Estelle, supra, at 106, a standard the parties agree governs the claim in this case. The parties disagree, however, on the proper test for deliberate indifference, which we must therefore undertake to define. B 1 Although we have never paused to explain the meaning of the term “deliberate indifference,” the case law is instructive. The term first appeared in the United States Reports in Estelle v. Gamble, 429 U." } ]

[ { "docid": "22425734", "title": "", "text": "must determine whether, in light of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), he is entitled to any relief. Eighth Amendment Claim While the Constitution does not require that custodial inmates be housed in comfortable prisons, the Eighth Amendment’s prohibition against cruel and unusual punishment does require that prisoners be afforded “humane conditions of confinement” and prison officials are to ensure that inmates receive adequate food, shelter, clothing, and medical care. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). In order to establish an Eighth Amendment violation regarding conditions of confinement, an inmate must establish: first, that the deprivation alleged was sufficiently serious (i.e., an official’s act or omission must have resulted in the denial of “the minimal civilized measure of life’s necessities”); and second, that the prison official possessed a sufficiently culpable state of mind. See id. at 1977. The required state of mind for cases related to prison conditions is that the official acted with deliberate indifference to inmate health or safety. See Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.1999). Deliberate indifference is established by showing that the defendant officials “(1) were aware of facts from which an inference of excessive risk to the prisoner’s health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). With respect to Herman’s allegation that he was exposed to carcinogenic asbestos particles while housed at the ECDC, we note that the Supreme Court has held that the Eighth Amendment does protect prisoners from deliberate indifference by prison officials as to conditions which pose an unreasonable risk of damage to an inmate’s future health. In Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 2480-81, 125 L.Ed.2d 22 (1993), the Court held that an inmate may obtain injunctive relief under § 1983 based on exposure to environmental tobacco smoke in the absence of a present physical injury. But such relief is conditioned upon a showing that the inmate was exposed to unreasonably high levels" }, { "docid": "22301396", "title": "", "text": "cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious,” ... a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities,” .... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm .... The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”_ To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” _ In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety .... — U.S. at -, 114 S.Ct. at 1977. In these eases the plaintiffs make identical averments of the alleged Eighth Amendment violation by failure to protect their safety. They state: Defendants MONDRAGON and DORSEY have failed in their obligation and responsibility to protect and preserve Plaintiffs safety and well-being. Plaintiff is exposed to adverse prison setting, constantly in fear of his life by physical assaults from other inmates who may discover his crime as sex offense at any time. I R., Tab 1, at 6. These averments in the Riddle complaint also appear in those of the other five plaihtiffs-appellants. We hold that these allegations fail to state an Eighth Amendment claim for alleged failure to protect the plaintiffs’ safety. It is true that one does not have to await the consummation of threatened injury to obtain preventive relief. Farmer v. Brennan, — U.S. at -, 114 S.Ct. at 1983. Nevertheless, as a first requirement, the deprivation alleged must be objectively sufficiently serious, as Farmer holds. Id. at -, 114 S.Ct. at 1977. The allegations quoted above are the sum and substance of the claim of denial of protection, and they are merely conclusory allegations without supporting factual aver-ments sufficient to state such a claim on which relief can be granted. Hall v." }, { "docid": "5983776", "title": "", "text": "to twelve years. Sandin, 515 U.S. at 487, 115 S.Ct. at 2302. For the foregoing reasons, plaintiffs SHU confinement does not give rise to a liberty interest sufficient to support a due process claim. Accordingly, summary judgment is granted on plaintiffs Fourteenth Amendment claims against Irvin, Guenther, Kihl, and O’Connor. 2. Eight Amendment Claim Plaintiff asserts an Eighth Amendment claim against defendant Irvin for the injuries he allegedly suffered while confined in SHU. Plaintiff maintains that these injuries were caused by the deprivation of food, water, and lighting, as well as Irvin’s policy which required all SHU inmates to store their personal property on the floor. Defendant Irvin moves for summary judgment on the ground that plaintiff is unable to establish an Eighth Amendment violation. The Eighth Amendment to the United States Constitution protects inmates from the infliction of cruel and unusual punishment. Prison officials, therefore, have a duty under the Eighth Amendment to provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). Consistent with that duty, prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care and must take reasonable measures to guarantee inmate safety. Id. The Eighth Amendment, however, “does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), and does not provide relief for perceived acts of negligence on the part of prison officials. To prevail on an Eighth Amendment claim based on prison conditions, an inmate must establish both an objective and a subjective element. Objectively, the deprivation must be “sufficiently serious.” Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (quoting Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991)). In other words, “a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities.’ ” Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (quoting Rhodes, 452 U.S. at 347,101 S.Ct. at 2399). Subjectively, the prison official must have acted with a “sufficiently culpable state of" }, { "docid": "18574979", "title": "", "text": "“excessive physical force against inmates.” Farmer, — U.S. at —, 114 S.Ct. at 1976; Hoptowit v. Ray, 682 F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have “a duty to take reasonable steps to protect inmates from physical abuse”); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir.1988), cert. denied, 490 U.S. 1012, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989) (“prison administrators’ indifference to brutal behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim”). As courts have succinctly observed, “[p]ersons are sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F.Supp. 797, 800 (N.D.Iowa 1992) (citation omitted), aff'd, 973 F.2d 686 (8th Cir.1992). “Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’” Farmer, — U.S. at —, 114 S.Ct. at 1977 (quoting Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399). In order to prevail on any Eighth Amendment claim alleging cruel and unusual punishment, a plaintiff must satisfy two requirements: First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities. For a claim ... based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.... The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. Farmer, — U.S. at —, 114 S.Ct. at 1977 (internal quotations and citations omitted); see also Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991). Thus, every Eighth Amendment claim embodies an objective and subjective component. Wilson, 501 U.S. at 297-98, 111 S.Ct. at 2323-2326. The former focuses on whether there has been a deprivation or infliction of pain serious enough to implicate constitutional concerns, while the latter requires inquiry into the defendant’s state of mind to" }, { "docid": "23018494", "title": "", "text": "court therefore found Dr. Benjamin was entitled to a finding of qualified immunity. Because all of the remaining defendants were entitled to qualified immunity as a matter of law, the district court dismissed the case with prejudice. Walker appeals the district court’s grant of summary judgment in favor of Drs. Benjamin, Ansari and Feinerman, as well as Nurse Dunbar. He does not appeal the district court’s earlier grant of summary judgment in favor of Dr. Pilapil and Nurse Rowland. II. We review the district court’s grant of summary judgment on the grounds of qualified immunity de novo. Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir.1996); Walker v. Shansky, 28 F.3d 666, 670 (7th Cir.1994). Walker complains that the defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment. In particular, he alleges that they were deliberately indifferent to his serious medical needs, and this indifference caused him great pain and permanent injury. The Supreme Court held in Estelle v. Gamble that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and that such indifference may give rise to a claim under section 1983. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A deliberate indifference claim contains both objective and subjective elements. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.1997). The deprivation suffered by the prisoner must be objectively sufficiently serious; that is, it must result in the denial of the minimal civilized measure of life’s .necessities. Gutierrez, 111 F.3d at 1369 (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). “In the medical care context, the objective element requires that the inmate’s medical need be sufficiently serious.” Gutierrez, 111 F.3d at 1369. The subjective element requires that the prison official acted with a sufficiently culpable state of mind. Id. A negligent or inadvertent failure to provide adequate medical care is insufficient to state a section 1983 claim because such a failure" }, { "docid": "22576180", "title": "", "text": "he argues the district court improperly denied his request for appointed counsel. II. Snipes’ Eighth Amendment contentions are at best a questionable claim for medical malpractice and negligence. Snipes thinks the prison doctor improperly treated his toenail and that prison officials should have provided faster-draining showers. These are not constitutional injuries. A. “[T]he primary concern of the drafters [of the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’] was to proscribe ‘torture[s] and other bar-bar[ous]’ methods of punishment.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (quoting Granueci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Calif.L.Rev. 839, 842 (1969)). Nevertheless, recent Supreme Court decisions have held that the Eighth Amendment proscribes more than just “physically barbarous punishments.” Estelle, 429 U.S. at 102, 97 S.Ct. at 290. “The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, -, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (internal citations and quotation marks omitted). Such “treatment” and “conditions” include a prisoner’s medical care, for the government has an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle, 429 U.S. at 103, 97 S.Ct. at 290. “[A] prison official violates the Eighth Amendment only when two requirements are met. First the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at -, 114 S.Ct. at 1977 (internal citations and quotation marks omitted). “The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (internal" }, { "docid": "22255308", "title": "", "text": "appellants argue that the conditions Palmer experienced did not rise to the level of a constitutional violation. Although the constitution “does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), conditions of confinement “must not involve the wanton and unnecessary infliction of pain.” Id. at 347, 101 S.Ct. at 2399. The Eighth Amendment’s prohibition against cruel and unusual punishment requires prison officials to provide “hu mane conditions of confinement,” ensuring that “inmates receive adequate food, clothing, shelter, and medical care.... ” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). The Supreme Court has held that an inmate must satisfy two requirements to demonstrate that a prison official has violated the Eighth Amendment. “First, the deprivation alleged must be, objectively, ‘sufficiently serious’; a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities.’ ” Id. at 834, 114 S.Ct. at 1977 (citations omitted). Second, “a prison official must have a ‘sufficiently culpable state of mind’ ” Id., 114 S.Ct. at 1977. In prison conditions cases, that state of mind is one of deliberate indifference to inmate health or safety. See id., 114 S.Ct. at 1977. “To establish deliberate indifference ..., the prisoner must show that the defendants (1) were aware of facts from which an inference of an excessive risk to the prisoner’s health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). Palmer claims that his overnight outdoor confinement without shelter, protective clothing, or acceptable means to dispose of his bodily waste deprived him of the “minimal civilized measures of life’s necessities.” The appellants attempt to downplay the degree of the claimed deprivation by deconstructing the elements of the sleep-out and focusing on its relatively brief duration. We agree that some aspects of the incident do not evince a constitutional violation. That Palmer may have missed one meal and may have endured irritating insect bites without" }, { "docid": "22255307", "title": "", "text": "of discretionary authority results in a violation of an individual’s federal constitutional or statutory rights, “unless at the time and under the circumstances of the challenged conduct all reasonable officials would have realized that it was proscribed by the federal law on which the suit is founded.” Pierce v. Smith, 117 F.3d 866, 871 (5th Cir.1997). The bifurcated test for qualified immunity asks whether the plaintiff has alleged a violation of a clearly established right and, if so, whether the defendant’s conduct was objectively unreasonable. See Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.1998). Currently applicable constitutional standards govern the first prong of the analysis. See id. at 326. The second prong involves “two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in the light of that then clearly established law.” Id. at 326 (citations omitted). Palmer argues that Hartnett and Mendoza violated his rights under the Eighth Amendment whereas the appellants argue that the conditions Palmer experienced did not rise to the level of a constitutional violation. Although the constitution “does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), conditions of confinement “must not involve the wanton and unnecessary infliction of pain.” Id. at 347, 101 S.Ct. at 2399. The Eighth Amendment’s prohibition against cruel and unusual punishment requires prison officials to provide “hu mane conditions of confinement,” ensuring that “inmates receive adequate food, clothing, shelter, and medical care.... ” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). The Supreme Court has held that an inmate must satisfy two requirements to demonstrate that a prison official has violated the Eighth Amendment. “First, the deprivation alleged must be, objectively, ‘sufficiently serious’; a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities.’ ” Id. at 834, 114 S.Ct. at 1977 (citations omitted). Second, “a prison official must have a ‘sufficiently" }, { "docid": "19027566", "title": "", "text": "that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. Since Estelle said that “only the ‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege ‘deliberate indifference’ to his ‘serious’ medical needs.” Wilson, 501 U.S. at 297, 111 S.Ct. 2321 (internal citation omitted). The Court explains the test as follows: [A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious”; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities” .... The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety.... Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal citations omitted). We conclude that Morris has not alleged facts that exhibit deliberate indifference. “[T]he deliberate indifference standard of Estelle does not guarantee prisoners the right to be entirely free from the cost considerations that figure in the medical-care decisions made by most non-prisoners in our society.” Wagner, 128 F.3d at 175; see also Farrakhan v. Johnson, 1:08ev438, 2009 WL 1360864, at *5 (E.D.Va. May 13, 2009) (unpublished) (“Inmates are not entitled to free medical care, and an inmate’s displeasure at having to pay such co-payment does not present a constitutional claim.”). Morris has not alleged that he is denied medical care. He also has not pled sufficient facts to show that the health care services fee acts as a functional denial of medical care, by requiring him to obtain either medical care or basic necessities. The Eighth Amendment requires prison officials to provide inmates with “adequate food, clothing, shelter, and medical care.” Farmer, 511 U.S. at 832, 114 S.Ct. 1970. Although Morris alleges" }, { "docid": "22301395", "title": "", "text": "risk of serious harm to an inmate violates the Eighth Amendment.” Id. at -, 114 S.Ct. at 1974. An Eighth Amendment claim for failure to protect is comprised of two elements. First, an inmate “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, — U.S. at -, 114 S.Ct. at 1977. Second, the inmate must establish that the prison official has a “ ‘sufficiently culpable state of mind,”’ i.e., that he or she is deliberately indifferent to the inmate’s health or safety. Id. (quoting Wilson v. Setter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991)). The prison official’s state of mind is measured by a subjective, rather than an objective, standard. Farmer, — U.S. at -, 114 S.Ct. at 1977. In other words, 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. In explaining its holding in Farmer, the Court stated: Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious,” ... a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities,” .... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm .... The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”_ To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” _ In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety .... — U.S. at -, 114 S.Ct. at 1977. In these eases the plaintiffs make identical averments of the alleged Eighth Amendment violation by failure to protect their safety. They state: Defendants MONDRAGON and DORSEY have failed in their" }, { "docid": "13527066", "title": "", "text": "(1953). The present case does not involve a claim that the conditions of confinement warrant a wider degree of protection under Article 55 than the protections applicable to civilians under the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Supreme Court has held that “[t]he Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)(quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). In order to find a violation of the Eighth Amendment, two requirements must be met: First, the deprivation alleged must be, objectively, “sufficiently serious”; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities.” ... The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” In prison-conditions cases, that state of mind is one of “deliberate indifference” to inmate health or safety[.] 511 U.S. at 834, 114 S.Ct. 1970 (citations omitted). Conditions the Supreme Court has found to violate the Eighth Amendment include the deprivation of medical treatment and “deliberate indifference to serious medical needs,” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); the use of excessive force against inmates, Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); and the failure to provide sufficient food, sanitary housing, and safety from beatings or torture by other inmates or guards, Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)(citing with approval the district court’s findings on cruel and unusual punishment in Finney v. Hutto, 410 F.Supp. 251 (E.D.Ark. 1976)). This case does not involve similar treatment. Solitary confinement, per se, has not been held to violate the Cruel and Unusual Punishment Clause. Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir.1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719," }, { "docid": "22576181", "title": "", "text": "under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, -, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (internal citations and quotation marks omitted). Such “treatment” and “conditions” include a prisoner’s medical care, for the government has an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle, 429 U.S. at 103, 97 S.Ct. at 290. “[A] prison official violates the Eighth Amendment only when two requirements are met. First the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at -, 114 S.Ct. at 1977 (internal citations and quotation marks omitted). “The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (internal citations and quotation marks omitted). Thus, “the Eighth Amendment does not apply to every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only [to] that narrow class of deprivations involving ‘serious’ injury inflicted by prison officials acting with a culpable state of mind.” Hudson v. McMillian, 503 U.S. 1, 19, 112 S.Ct. 995, 1006, 117 L.Ed.2d 156 (1992) (Thomas, J., dissenting). “[D]eliberate indifference to [the] serious medical needs of prisoners” violates the Eighth Amendment. Estelle, 429 U.S. at 104, 97 S.Ct. at 291. The test to determine whether a prison official acted with “deliberate indifference” is a subjective one: “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.... [A]n official’s failure to alleviate a significant risk" }, { "docid": "18574980", "title": "", "text": "alleged must be, objectively, sufficiently serious; a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities. For a claim ... based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.... The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. Farmer, — U.S. at —, 114 S.Ct. at 1977 (internal quotations and citations omitted); see also Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991). Thus, every Eighth Amendment claim embodies an objective and subjective component. Wilson, 501 U.S. at 297-98, 111 S.Ct. at 2323-2326. The former focuses on whether there has been a deprivation or infliction of pain serious enough to implicate constitutional concerns, while the latter requires inquiry into the defendant’s state of mind to determine whether the infliction of pain was “unnecessary and wanton.” Jordan v. Gardner, 986 F.2d 1521, 1525-28 (9th Cir.1993) (en banc). In considering whether the objective component has been met, the Court must focus on discrete and essential human needs such as health, safety, food, warmth or exercise. Wilson, 501 U.S. at 304, 111 S.Ct. at 2327. “Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison.” Hoptowit, 682 F.2d at 1246 (quoting Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir.1981)). Thus, while courts may consider conditions in combination “when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need ...[,] [n]othing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” Wilson, 501 U.S. at 304-05, 111 S.Ct. at 2327. The question whether the objective component of an Eighth Amendment claim has been met presents an issue of law for the court to decide. Hickey v." }, { "docid": "13527065", "title": "", "text": "faced potential confinement of more than 5 years to maximum custody segregation, a policy which was inconsistent with the “individualized assessment” required by Article 13, UCMJ, 10 USC § 813. Unpub. op. at 7. The court rejected appellant’s request for further relief based upon his claim that the pretrial and post-trial confinement constituted cruel and unusual punishment in violation of the Eighth Amendment. Id. at 7. II. DISCUSSION We agree with the court below. Appellant has not demonstrated that the conditions of his confinement amounted to cruel and unusual punishment. A servicemember is entitled, both by statute and the Eighth Amendment, to protection against cruel and unusual punishment. See United States v. Matthews, 16 MJ 354, 368 (CMA 1983); Art. 55, UCMJ, 10 USC § 855. In general, we have applied the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, except in circumstances where we have discerned a legislative intent to provide greater protections under the statute. See United States v. Wappler, 2 USCMA 393, 396, 9 CMR 23, 26 (1953). The present case does not involve a claim that the conditions of confinement warrant a wider degree of protection under Article 55 than the protections applicable to civilians under the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Supreme Court has held that “[t]he Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)(quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). In order to find a violation of the Eighth Amendment, two requirements must be met: First, the deprivation alleged must be, objectively, “sufficiently serious”; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities.” ... The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” In prison-conditions cases, that" }, { "docid": "15361120", "title": "", "text": "429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). What has also been clear since Estelle is that with regard to medical care, not every denial violates the Constitution. Estelle prohibits “deliberate indifference to serious medical needs.” Medical malpractice, for instance, is not a violation of the amendment. As the Court stated, [A]n inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” At 106-107, 97 S.Ct. at 292. The Supreme Court has recently made clear that in Eighth Amendment cases a constitutional violation has two components. Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious,” [citations omitted]; a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities. The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment” ... To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” Farmer v. Brennan, - U.S.-,-, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). We believe the undisputed facts demonstrate that Mr. Oliver has not satisfied the first element; he has not demonstrated that he has a serious medical need or that he has been denied “the minimal civilized measure of life’s necessities.” In determining whether summary judgment is appropriate, we must first clearly understand what Mr. Oliver is claiming. He does not seek injunctive relief. Therefore, this is not a case like Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), in which the Court determined that an Eighth Amendment claim can be stated to prevent an “unsafe, life-threatening condition,” which may not have yet caused a tragic event. The Court found that an inmate “states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS [environmental tobacco smoke] that" }, { "docid": "22059289", "title": "", "text": "cruel and unusual punishment has been implicated by the defendants’ failure to act in this case. Without question, prison officials have an affirmative duty to protect inmates from violence perpetrated by other prisoners. As the Supreme Court noted in Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), “[h]aving incarcerated persons with demonstrated proclivities for antisocial criminal, and often violent, conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” (Internal quotation marks and citations omitted.) Nevertheless, not all injuries suffered by an inmate at the hands of another prisoner result in constitutional liability for prison officials under the Eighth Amendment. Instead, the deprivation alleged “must result in the denial of ‘the minimal civilized measure of life’s necessities,’” id. at 834, 114 S.Ct. 1970 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)), and, in prison condition cases such as the one presently before the court, the prison officials must exhibit deliberate indifference to the health or safety of the inmate. Id. Implicit in this standard is the recognition that the plaintiff must allege that he has suffered or is threatened with suffering actual harm as a result of the defendants’ acts or omissions before he can make any claim with an arguable basis in Eighth Amendment jurisprudence. Wilson has completely failed to do so in this case. The plaintiff primarily requests monetary relief from the defendants in the form of compensatory and punitive damages. Requests for damages, however, seek to compensate plaintiffs for past injuries. See Carey v. Piphus, 435 U.S. 247, 254-57, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In this case, Wilson advances no allegation that the Aryan Brotherhood actually injured him physically. Nor does he even hint that he has suffered any emotional or psychological injury from the alleged threats. Even if he had claimed a non-physical injury such as fear of assault at the hands of the prison gang, however," }, { "docid": "1685934", "title": "", "text": "himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment....” According to the Supreme Court, a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be “sufficiently serious.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (citing Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Generally, to violate the amendment a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities.” Id. (citing Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Second, the prison official must have a “sufficiently culpable state of mind,” which, insofar as conditions of confinement are concerned, requires a showing that the official was “deliberately indifferent” to inmate health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. This second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Id. (citing Wilson, 501 U.S. at 297, 111 S.Ct. 2321). The Supreme Court has characterized “deliberate indifference” as something more than an ordinary lack of due care and something less than acts or omissions done for the very purpose of causing harm or with knowledge-that harm will result. Farmer, 511 U.S. at 835, 114 S.Ct. 1970. Under this standard, a prison official cannot be found liable for denying a prisoner humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that ’ a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837, 114 S.Ct. 1970. b. Conditions Generally. Plaintiff argues that numerous factors at the Cowley County Jail contributed to produce what amounted to cruel and unusual punishment. He first complains of the jail’s general conditions. Anong other things, plaintiff" }, { "docid": "22746325", "title": "", "text": "that case, inmates at the Southern Ohio Correctional Facility contended that the lodging of two inmates in a single cell (“double celling”) constituted cruel and unusual punishment. We rejected that contention, concluding that it amounts “[a]t most ... to a theory that double celling inflicts pain,” id., at 348-349, but not that it constitutes the “unnecessary and wanton infliction of pain” that violates the Eighth Amendment, id., at 346. The Constitution, we said, “does not mandate comfortable prisons,” id., at 349, and only those deprivations denying “the minimal civilized measure of life’s necessities,” id., at 347, are sufficiently grave to form the basis of an Eighth Amendment violation. Our holding in Rhodes on of an Eighth Amendment prison claim (Was the deprivation sufficiently serious?), and we did not consider the subjective component (Did the officials act with a sufficiently culpable state of mind?). That Rhodes had not eliminated the subjective component was made clear by our next relevant case, Whitley v. Albers, 475 U. S. 312 (1986). There an inmate shot by a guard during an attempt to quell a prison disturbance contended that he had been subjected to cruel and unusual punishment. We stated: “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. ... It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Id., at 319 (emphasis added; citations omitted; internal quotation marks omitted). These cases mandate inquiry into a prison official’s state of mind when it is claimed that the official has inflicted cruel and unusual punishment. See also Graham v. Connor, 490 U. S. 386, 398 (1989). Petitioner concedes that this is so with respect" }, { "docid": "19027565", "title": "", "text": "care. That is a matter of state law.” Id. at 245, 103 S.Ct. 2979. The Court stated that “[n]oth-ing we say here affects any right a hospital or governmental entity may have to recover from a detainee the cost of the medical services provided to him.” Id. at 245 n. 7, 103 S.Ct. 2979. From this, the lower courts have concluded that there is “no general constitutional right to free health care.” Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir.1997); see Poole v. Isaacs, 703 F.3d 1024, 1026 (7th Cir.2012) (the “Eighth Amendment does not compel prison administrators to provide cost-free medical services to inmates who are able to contribute to the cost of their care”); Bihms v. Klevenhagen, 928 F.Supp. 717, 718 (S.D.Tex.1996) (“As [plaintiff] was obliged to pay court costs, he may be obliged to pay his medical costs.”). In the medical context, “to state a cognizable [Eighth Amendment] claim, a prisoner must allege acts or omissions suf-fieiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. Since Estelle said that “only the ‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment, a prisoner advancing such a claim must, at a minimum, allege ‘deliberate indifference’ to his ‘serious’ medical needs.” Wilson, 501 U.S. at 297, 111 S.Ct. 2321 (internal citation omitted). The Court explains the test as follows: [A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious”; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities” .... The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” In prison-conditions cases that state of mind is one of “deliberate indifference” to inmate health or safety.... Farmer v. Brennan, 511" }, { "docid": "23659992", "title": "", "text": "and unusual treatment. She points out that defendants Warden Higgins and Director Peters have not denied knowledge of Ms. Vance’s serious medical condition and of her failure to receive appropriate attention. She further asserts that there is a material issue of fact concerning the intent of Peters and Higgins, who were made aware of her condition through letters written by herself and two other inmates and yet failed to provide her medical treatment. Ms. Vance’s position is that the officials’ failure to act, once they had knowledge, suggests that those officials desired the prisoner to suffer harm. B. When considering whether the defendants are subject to § 1983 liability, we follow our long-settled rule: “Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation.” Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir.1994) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983)), cert. denied, — U.S. -, 115 S.Ct. 937, 130 L.Ed.2d 882 (1995). The constitutional deprivation alleged in this case is an Eighth Amendment violation. The Eighth Amendment to the Constitution of the United States proscribes the infliction of “cruel and unusual punishments.” The amendment imposes upon prison officials the duly to “provide humane conditions of confinement,” Farmer v. Brennan, 511 U.S. 825, -, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994), including the obligation to provide medical care to those whom it has incarcerated, Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). A prisoner raising an Eighth Amendment claim against a prison official therefore must satisfy two requirements. The first one is an objective standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer, 511 U.S. at -, 114 S.Ct. at 1977. As the Court explained in Farmer, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.” Id. The second requirement is a subjective one: “[A] prison official must have a ‘sufficiently culpable state of mind,”’ one that the" } ]

[ { "docid": "13632456", "title": "", "text": "we deem appropriate.” The village took no action in response to the letter of August 31, 1973 and on November 1, 1973 plaintiffs filed the instant lawsuit. II We consider first appellants’ claim under § 1985. In Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971), the Supreme Court defined the elements of a claim under § 1985(3) as follows: To come within the legislation a complaint must allege that the defendants did (1) “conspire ...” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.” In the same opinion, the Supreme Court said: The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. (Footnotes omitted.) 403 U.S. at 102, 91 S.Ct. at 1798. To like effect, see Ohio Inns, supra, 542 F.2d at 678-79; Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973); Hopkins v. Wasson, 329 F.2d 67 (6th Cir.), cert. denied, 379 U.S. 854, 85 S.Ct. 102, 13 L.Ed.2d 57 (1964). We agree with the holding of the district court that there was a total failure of evidence on this issue. The record is devoid of any evidence suggesting the existence of a conspiracy, or any acts on the part of Village officials, directed at appellants because of their membership in a defined class. See Ellentuck v. Klein, 570 F.2d 414, 426 (2d Cir. 1978); Atkins v. Lanning," } ]

[ { "docid": "16411814", "title": "", "text": "See also Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir. 1971). Contra Knott v. Missouri Pacific Railroad Co., 389 F.Supp. 856 (E.D.Mo.1975), aff’d, 527 F.2d 1249 (8th Cir. 1975) (claims under Section 1985(3) not appealed); Baker v. Stuart Broadcasting Co., 8 FEP Cases 1240 (D.Neb. 1974), aff’d, 505 F.2d 181 (8th Cir. 1974) (declining to pass on district court’s holding that Section 1985(3) does not reach sex-based conspiracies). Similarly, every appellate court which has faced the issue has concluded that the scope of Section 1985(3) is not limited to racially-motivated conspiracies: class-based animus sufficient to support a Section 1985(3) cause of action has been found to exist in conspiracies motivated by invidiously discriminatory intent directed toward supporters of a particular political candidate, Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973) and Means v. Wilson, 522 F.2d 833, 839-841 (8th Cir. 1975) , cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); voters who were deceived as to the actual effect of their vote, Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974); persons critical of government officials and policies, Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); persons deprived of equal employment opportunities because of religious and national origin, ..Marlowe v. Fisher Body, 489 F.2d 1057, 1065 (6th Cir. 1973); white individuals harassed by police, Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972); white persons who advocate racial equality in employment opportunities, Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971); member of group of environmentalists or tax equity group, Westberry v. Gilman Paper Company, 5 Cir., 507 F.2d 206, opinion withdrawn and vacated as moot, 507 F.2d 215 (5th Cir. 1975). See Lopez v. Arrowhead Ranches, 523 F.2d 924, 927 (9th Cir. 1975) (assuming without deciding that legality of residence status creates a class cognizable under Griffin). See also Local No. 1 (ACA) v. International Brotherhood of Teamsters, 419 F.Supp. 263 (E.D.Pa.1976) (class expressing views" }, { "docid": "1335958", "title": "", "text": "for purposes of § 1985(3). See Conklin v. Lovely, 834 F.2d 543, 549 (6th Cir.1987); Cameron v. Brock, 473 F.2d 608, 610 (6th Cir.1973) (“clearly defined classes, such as supporters of a political candidate,” come within § 1985(3)); Glasson v. City of Louisville, 518 F.2d 899, 911-12 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975). Conklin, Cameron, and Glasson suggest that all registered Republicans would constitute a clearly defined “class of persons” for purposes of § 1985(3). Mr. Rice, however, does not claim he was discriminated against for not being a registered Republican; Mr. Rice is a Republican, as it happens, and insofar as § 1985 is concerned his claim is that he was conspired against simply “because of lack of political activity in the Republican Party....” The degree of political activity engaged in by members of the same political party is too uncertain a standard, in our view, for delineating “clearly defined classes” of the sort § 1985 was designed to protect. Noting that “there is no indication that plaintiff is a member of any class which has historically been entitled to Fourteenth Amendment protection,” the district court concluded that Mr. Rice was not a member of a “discrete group” against whom the defendants’ alleged conspiratorial animus was directed. We agree. The judgment of the district court is AFFIRMED. . For the first time on appeal, Mr. Rice suggests that the allegedly retaliatory failure to promote also violated his right to due process and his rights under the Equal Protection Clause. These provisions of the Fourteenth Amendment were not mentioned in Mr. Rice’s complaint as a basis for the retaliation claim, and were not otherwise relied upon in the proceedings before the district court. We shall not consider them here. BOYCE F. MARTIN, JR., Circuit Judge, concurring in part and dissenting in part. I reluctantly concur in the majority’s holding that, under the authority of Messer v. Curci, 881 F.2d 219 (6th Cir.1989) (en banc), the district court did not err in its dismissal on summary judgment of Rice’s § 1983 claim for" }, { "docid": "400202", "title": "", "text": "Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977). The circuit court cases which have recognized under § 1985, classes which are not racially based, have stayed close to the areas protected by the First Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (employees with a certain political view). Debtors have not been recognized as a protected class as yet. Bankrupts have been expressly held not to be such a class in an en banc decision of the Fifth Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977). Surely if we should recognize debtors as a protected class it would be the largest in America. We do not have to make that decision, however, because the plaintiff is not complaining about a conspiracy against all debtors, only those debtors who owe the Topeka Bank & Trust Company, who have defaulted on their loans, have not responded to ordinary means of pressure, and have committed some violation of law which gives the alleged coconspirator police officers an excuse to arrest them. That surely does not describe a discriminatory animus against all debtors, against a type or class of debtors, or anyone other than this particular individual. The instant case is not essentially different from Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973) where we held a physician denied staff privileges at a hospital had not shown himself the object of a class-based invidiously discriminatory animus. The complaint must allege facts showing a conspiracy against plaintiff “because of” her membership in a class, and that the criteria defining the class “were invidious.” Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir. 1975). The complaint was properly dismissed as to the 42 U.S.C. §§ 1985(2), (3) and 1986 claims. II We turn to the sufficiency of the allegations of" }, { "docid": "5436369", "title": "", "text": "of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. See Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), and the cases cited therein for a comprehensive review of the legislative history of § 1985(3). . No post-Griffin court has found that § 1985(3) is limited exclusively to racial situations. Many federal courts have unhesitatingly expanded the protections of § 1985(3) well beyond the racial context. See Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975) (female faculty members); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976) (Indian supporters of a political candidate); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (supporters of a political candidate); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (employees of Jewish faith); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (voters who were deceived as to the actual effect of their vote); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972) (middle class white family); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (members of a predominantly white Catholic parish); Harrison v. Brooks, 446 F.2d 404 (1st Cir. 1971) (married couple); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (persons who advocated racial equality in employment opportunities); Thompson v. State of New York, 487 F.Supp. 212 (N.D.N.Y.1979) (Indians, relatives of Indians, or residents of Indian reservations); Lapin v. Taylor, 475 F.Supp. 446 (D.Hawaii 1979) (federal employees who disclose illegal or improper government activities); Curran v. Portland" }, { "docid": "9622015", "title": "", "text": "446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indian supporters of a political candidate), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975) (opponents of a political figure, the President), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of the Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir.1973) (supporters of a political candidate); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (members of a predominately white Catholic parish). In other decisions, however, those courts have not extended the protection of § 1985(3). See, e.g., Wilhelm v. Continental Title Co., 720 F.2d 1173 (10th Cir.1983) (handicapped persons); Taylor v. Brighton, 616 F.2d 256 (6th Cir.1980) (employees who wished to file racial, labor, and OSHA complaints); DeSantis v. Pacific Telephone and Telegraph Co., 608 F.2d 327 (9th Cir.1979) (homosexuals); Carchman v. Korman Corp., 594 F.2d 354 (3rd Cir.1979) (tenant organizers), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979); Lessman v. McCormick, 591 F.2d 605 (10th Cir.1979) (debtors); McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir.1977) (en banc) (bankrupts); Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir.1975) (female as faculty member), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976); Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975) (citizens and legally admitted alien farm workers); Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir.1974) (Ku Klux Klan members); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972) (lawyer with criminal practice and minority clients). In reviewing these decisions, it becomes apparent that despite those decisions which have limited the scope of the statute, there exists support for the contention that Republicans constitute a class entitled to relief under § 1985(3). The argument is further bolstered by the frequent mention of Republicans as victims of Klan activity in the legislative history of the" }, { "docid": "12527226", "title": "", "text": "a general federal tort law, which it did not intend to do. Senator Edmunds’ statement is the most detailed description in the legislative history of the type of class-based discrimination cognizable under § 1985. Because Edmunds was the Senate manager of the bill, we afford his statements great weight. If the Klan burns a barn because of racial, religious, political or sectional animus against the owner, they violate the statute. If they burn the barn simply out of personal enmity between the owner and the Klan’s Grand Dragon, there is no violation. The violation turns on the need for a class-based motivation for the wrong. In addition to these hypotheticals, we have several other examples of protected and unprotected classes. Following Griffin our Court has been faced at least eight times with groups claiming protection under § 1985. Among the legitimate § 1985(3) classes we have included supporters of a sheriff’s political opponent, Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973), anti-Nixon demonstrators, Giasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975), and members of the Jewish faith, Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973). On the other hand we have excluded classes formed by corporation employees fired for filing OSHA complaints, Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980), a non-Union employer, Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976), a business owner operating in an area rezoned exclusively for residential use, Studen v. Beebe, 588 F.2d 560 (6th Cir. 1978), an individual physician removed from a hospital staff, O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973), and an individual clothing store owner, Smith v. Martin, 542 F.2d 688 (6th Cir. 1976). Other Circuits have been faced with numerous similar classes claiming special protection under § 1985(3). Based on our previous cases and those from other Circuits, we see no analytical distinction between plaintiffs here and unprotected barn owners. IV. The words of § 1985 themselves provide guidance in how relevant distinctions" }, { "docid": "553809", "title": "", "text": "(1982) (deprogramming of religious group member); Life Insurance Co. v. Reichardt, 591 F.2d 499 (9th Cir.1979) (employment discrimination against women); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976) (Indian tribal elections); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (political protest); Smith v. Cherry, 489 F.2d 1098 (7th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (state political primary); Cameron v. Brock, 473 F.2d 608 (6th Cir.1973) (supporters of a political candidate); Action v. Gannon, 450 F.2d 1227 (8th Cir.1971) (disruption of religious services); Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981) (Klan disruption of alien fishing activity); Rios v. Marshall, 530 F.Supp. 351, 361 (S.D.N.Y.1981) (domestic migrant workers). The former Fifth Circuit’s recent application of section 1985(3) in the context of a violent labor dispute articulated the standards by which this court must evaluate the claims of the instant ease. Scott v. Moore, supra, 680 F.2d at 987-96. Based on Griffin and the subsequent Fifth Circuit case of McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir.1977) (en banc), the court in Scott set out the following five elements necessary to establish a section 1985(3) cause of action: (1) the defendant must conspire or go in disguise on the highway or premises of another; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; and (3) one or more of the conspirators must commit some act in furtherance of the conspiracy; whereby (4) another is either (a) injured in his person or property or (b) deprived of having and exercising any right or privilege of a citizen of the United States [; and] (5) that the conspirators’ conduct must be unlawful independent of the section 1985(3) violation. 680 F.2d at 987. In this case it is clear" }, { "docid": "21905707", "title": "", "text": "recognized that section 1985(3) covers classes “having common characteristics of an inherent nature” — i.e., those kinds of classes offered special protection under the equal protection clause. Id. at 347. We also recognized that: [t]he class-based animus required by the Supreme Court in Griffin and now reasserted by this court is not identical with the class-based distinctions required to support an action under the equal protection clause .... For example, section 1985 was certainly intended to cover conspiracies against Republicans; distinctions based on affiliation with a major political party are not among those traditionally subject to special scrutiny under the Fourteenth Amendment. What Griffin stands for, and what we now hold, is that Section 1985 was intended to encompass only those conspiracies motivated by animus against the kinds of classes Congress was trying to protect when it enacted the Ku Klux Klan Act. Id. at 347 n.9. Kimble is consistent with the decisions of the other circuits. Decisions which 'have accorded protection to nonracial classes have generally fallen into the two categories identified by Kimble. The first category consists of those classes afforded special protection under the equal protection clause. See, e.g., Ward v. Connor, 657 F.2d 45 (4th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982) (members of Unification Church); Life Insurance Company of North America v. Reichardt, 591 F.2d 499 (9th Cir. 1979) (women); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (Jews); Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978) (members of the Unification Church); Mandelkorn v. Patrick, 359 F.Supp. 692 (D.D.C.1973) (Children of God). The second is made up of classes whose members are discriminated against because of their political beliefs or associations. See, e.g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976) (supporters of a particular political candidate); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (political demonstrators); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S." }, { "docid": "14810450", "title": "", "text": "denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985) (noting that while the Supreme Court was troubled by whether political classes are covered under § 1985(3), political affiliation with racial overtones is within the ambit of statutory protection); Keating v. Carey, 706 F.2d 377, 386-88 (2d Cir.1983) (holding that § 1985(3) is aimed at prohibiting political discrimination); Kimble v. D.J. McDuffy Inc., 648 F.2d 340, 347 (5th Cir.) (en banc), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981) (a finding that class based on political beliefs or associations is the kind of class that the framers of the Ku Klux Klan Act intended to protect); Browder v. Tipton, 630 F.2d 1149, 1152 (6th Cir.1980) (actions against another based on political animus violates the statute); Hampton v. Hanrahan, 600 F.2d 600, 623 n. 22 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (recognizing that “[discrimination on the basis of political beliefs or affiliations has been found to be actionable under section 1985(3),” and on this basis held that the Black Panthers were entitled to § 1985(3) protection); Means v. Wilson, 522 F.2d 833, 839-40 (8th Cir.1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976) (political opponents are a protected class) (cited with approval in Life Ins. Co. of North American v. Reichardt, 591 F.2d 499, 505 (9th Cir.1979)) (regarding the broad construction of classes that § 1985(3) protects); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (opponents of a political figure are protected); Cameron v. Brock, 473 F.2d 608 (6th Cir.1973) (supporters of a political candidate are protected); Craig v. Celeste, 646 F.Supp. 47, 50-51 (S.D.Ohio 1986) (Republicans are protected under § 1985(3)); and Stevens v. Rifken, 608 F.Supp. 710, 722-23 (N.D.Cal.1985) (holding that a dissident political group organized to effect and/or prevent political and social change is entitled to § 1985(3) protection since enactment of the statute “was motivated in large part as a desire to" }, { "docid": "5436370", "title": "", "text": "Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (supporters of a political candidate); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (employees of Jewish faith); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (voters who were deceived as to the actual effect of their vote); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972) (middle class white family); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (members of a predominantly white Catholic parish); Harrison v. Brooks, 446 F.2d 404 (1st Cir. 1971) (married couple); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (persons who advocated racial equality in employment opportunities); Thompson v. State of New York, 487 F.Supp. 212 (N.D.N.Y.1979) (Indians, relatives of Indians, or residents of Indian reservations); Lapin v. Taylor, 475 F.Supp. 446 (D.Hawaii 1979) (federal employees who disclose illegal or improper government activities); Curran v. Portland Superintending School Committee, 435 F.Supp. 1063 (D.Me. 1977) (female employees); Local No. 1 (ACA) v. International Brotherhood of Teamsters, 419 F.Supp. 263 (E.D.Pa.1976), aff’d in part, rev’d in part, 614 F.2d 846 (3d Cir. 1980) (class expressing views contrary to union leadership); Milner v. National School of Health Technology, 409 F.Supp. 1389 (E.D.Pa.1976) (female employees); Bradley v. Clegg, 403 F.Supp. 830 (E.D.Wis.1975) (class of striking and picketing teachers); Brown v. Villanova University, 378 F.Supp. 342 (E.D.Pa.1974) (class of students exercising First Amendment rights through membership in certain organizations); Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa. 1974) (female faculty members); Stern v. Massachusetts Indemnity & Life Insurance Co., 365 F.Supp. 433 (E.D.Pa.1973) (female insurance purchasers). Other courts have not demonstrated the same willingness to expand the protections of § 1985(3). See Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979) (tenant organizers); Lessman v. McCormick, 591 F.2d 605 (10th Cir. 1979) (debtors); Bova v. Pipefitters & Plumbers Local 60, AFL-CIO, 554 F.2d 226" }, { "docid": "3325991", "title": "", "text": "Taylor v. Brighton Corp., No. C-1-77-56 (filed Sept. 16, 1977). The appellants urge that their § 1985(3) claims state a cause of action for class-based discrimination and so should not have been dismissed. Contrary to their original assertion that the appellees conspired to discriminate against all Brighton employees, the appellants now claim the conspiracy was aimed at those Brighton employees who exercised various constitutional and statutory rights. In other words, they assert membership in a class defined solely by the conduct of its members. In support of their argument that conduct can define a cognizable class for § 1985(3) purposes, the appellants cite this Court’s decisions in Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973), and Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975). In Cameron v. Brock, a supporter of an incumbent sheriff’s opponent was arrested while distributing campaign literature. He brought a § 1985(3) action charging that his arrest was a part of a conspiracy to deprive supporters of the sheriff’s opponent of the equal protection of the laws. In affirming the judgment for the plaintiff, we held that “§ 1985(3)’s protection reaches clearly defined classes, such as supporters of a political candidate. If a plaintiff can show that he was denied the protection of the law because of the class of which he was a member, he has an actionable claim under § 1985(3).” 473 F.2d at 610. Glasson v. City of Louisville was a case in which Louisville police, allegedly in an effort to avoid conflict during a visit by President Nixon, destroyed the plaintiff’s anti-Nixon poster but permitted the President’s supporters to display their signs. The plaintiff’s § 1985(3) suit was dismissed because the district court found no evidence that the discrimination was class-based. This Court reversed on the authority of Cameron v. Brock, holding that individuals who are critical of government officials may constitute a clearly defined class for § 1985(3) purposes. The appellants seek to bring their case within the rationale of Cameron and Glasson. They argue that" }, { "docid": "7861373", "title": "", "text": "allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Accord Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (physician has standing to challenge abortion statute due to “sufficiently direct threat of personal detriment”). The fact that Planned Parenthood involved state interference with the abortion decision, while the interference at issue here occurred at the hands of private actors, does not in any way loosen the nexus between the interests of the clinic and those of the women on whose behalf this suit is brought. We therefore hold that VMC has standing to bring the present action against defendants under § 1985(3). B. Class-based animus The defendants next argue that VMC has failed to prove the class-based animus necessary to bring a § 1985(3) action. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1970), established that a necessary element of § 1985(3) claim is the existence of “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”. The Supreme Court has explicitly left open whether § 1985(3) reaches conduct other than that motivated by racial animus. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 826, 835, 103 S.Ct. 3352, 3359, 77 L.Ed.2d 1049 (1983). Whether women are a protected class under § 1985(3) appears to be an issue of first impression in this circuit. Nevertheless, we have previously had occasion to consider whether the protections of § 1985(3) extend beyond the realm of purely racial animus, and have held unequivocally that it does. See, e.g., Conklin v. Lovely, 834 F.2d 543, 549-50 (6th Cir.1987) (holding that § 1985(3) extends to animus directed against political views); Glasson v. City of Louisville, 518 F.2d 899, 911-12 (6th Cir.) (same) cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Cameron v. Brock, 473 F.2d 608, 610 (6th Cir.1973) (same). More importantly, this court has interpreted § 1985(3) to hold that “the class of individuals protected by the ‘equal protection of the laws’ language" }, { "docid": "21905708", "title": "", "text": "The first category consists of those classes afforded special protection under the equal protection clause. See, e.g., Ward v. Connor, 657 F.2d 45 (4th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982) (members of Unification Church); Life Insurance Company of North America v. Reichardt, 591 F.2d 499 (9th Cir. 1979) (women); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (Jews); Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978) (members of the Unification Church); Mandelkorn v. Patrick, 359 F.Supp. 692 (D.D.C.1973) (Children of God). The second is made up of classes whose members are discriminated against because of their political beliefs or associations. See, e.g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976) (supporters of a particular political candidate); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (political demonstrators); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (voters for a sham political candidate); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of incumbent sheriff); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (worshippers at a predominantly white Catholic church disrupted by black civil rights protesters). Plaintiffs are not a class normally afforded special protection under the equal protection clause merely because they wish to work nonunion. They are entitled to section 1985(3) protection only if they are persons within the second category of protected classes noted by Kimble, “the kind[] of class Congress was trying to protect when it enacted the Ku Klux Klan Act.” 648 F.2d at 347 n.9. In considering whether plaintiffs qualify, we must from the outset be mindful that the conspiracy in this case was motivated by a prounion animus so strong that it staked its claim not merely ideologically, but geographically. The nonunion plaintiffs were repeatedly told that they were in union country and would be punished for choosing to work there nonunion. Not every conceivable" }, { "docid": "553808", "title": "", "text": "Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court “accord[ed] the words of the statute their apparent meaning” and held that section 1985(3) provided a civil remedy against the wholly private infringement of constitutional rights. 403 U.S. at 97, 91 S.Ct. at 1795. In that case the Court held that private conspiratorial infringements were actionable when the alleged conspiracy involved “invidiously discriminatory motivation:” The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. 403 U.S. at 102, 91 S.Ct. at 1798 (footnotes omitted) (emphasis in original). Since Griffin, federal courts have applied section 1985(3) in a variety of contexts. See, e.g., Scott v. Moore, supra, (union violence); Ward v. Connor, 657 F.2d 45 (5th Cir.1981), cert. denied 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982) (deprogramming of religious group member); Life Insurance Co. v. Reichardt, 591 F.2d 499 (9th Cir.1979) (employment discrimination against women); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976) (Indian tribal elections); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (political protest); Smith v. Cherry, 489 F.2d 1098 (7th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (state political primary); Cameron v. Brock, 473 F.2d 608 (6th Cir.1973) (supporters of a political candidate); Action v. Gannon, 450 F.2d 1227 (8th Cir.1971) (disruption of religious services); Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981) (Klan disruption of alien fishing activity); Rios v. Marshall, 530 F.Supp. 351, 361 (S.D.N.Y.1981) (domestic migrant workers). The former Fifth Circuit’s recent application of section 1985(3) in the context of a violent labor dispute articulated the standards by which this court must evaluate the claims" }, { "docid": "3325990", "title": "", "text": "omitted). Claims 5 and 6 of the appellants’ complaint allege that the defendants-appellees conspired to deprive all Brighton employees of their constitutionally and statutorily protected rights to bring safety violations to the attention of OSHA, file race discrimina tion charges with governmental agencies, belong to a union, and to be free of retaliatory discrimination for having exercised any of the foregoing rights. The district court held that the complaint did not state a cause of action under § 1985(3) because it failed to allege any class-based discriminatory animus on the part of the defendants. Relying on Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974), Judge Hogan held that “employees who have asserted various constitutional rights and the statutory rights stated in the amended complaint do not make up a class under 42 U.S.C. § 1985(3).” “The action of the defendants was directed at the individual plaintiffs because of their activities, not because of any animus against them as members of some class.” Taylor v. Brighton Corp., No. C-1-77-56 (filed Sept. 16, 1977). The appellants urge that their § 1985(3) claims state a cause of action for class-based discrimination and so should not have been dismissed. Contrary to their original assertion that the appellees conspired to discriminate against all Brighton employees, the appellants now claim the conspiracy was aimed at those Brighton employees who exercised various constitutional and statutory rights. In other words, they assert membership in a class defined solely by the conduct of its members. In support of their argument that conduct can define a cognizable class for § 1985(3) purposes, the appellants cite this Court’s decisions in Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973), and Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975). In Cameron v. Brock, a supporter of an incumbent sheriff’s opponent was arrested while distributing campaign literature. He brought a § 1985(3) action charging that his arrest was a part of a conspiracy to deprive supporters" }, { "docid": "7861374", "title": "", "text": "discriminatory animus behind the conspirators’ action”. The Supreme Court has explicitly left open whether § 1985(3) reaches conduct other than that motivated by racial animus. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 826, 835, 103 S.Ct. 3352, 3359, 77 L.Ed.2d 1049 (1983). Whether women are a protected class under § 1985(3) appears to be an issue of first impression in this circuit. Nevertheless, we have previously had occasion to consider whether the protections of § 1985(3) extend beyond the realm of purely racial animus, and have held unequivocally that it does. See, e.g., Conklin v. Lovely, 834 F.2d 543, 549-50 (6th Cir.1987) (holding that § 1985(3) extends to animus directed against political views); Glasson v. City of Louisville, 518 F.2d 899, 911-12 (6th Cir.) (same) cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Cameron v. Brock, 473 F.2d 608, 610 (6th Cir.1973) (same). More importantly, this court has interpreted § 1985(3) to hold that “the class of individuals protected by the ‘equal protection of the laws’ language of [§ 1985(3) ] are those so-called ‘discrete and insular’ minorities that receive special protection under the Equal Protection Clause because of inherent personal characteristics.” Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir.1980). Significantly, we announced our holding in Browder in light of the Supreme Court’s decision in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), extending the ambit of the Equal Protection Clauses of the Fifth and Fourteenth Amendments to sex-based discrimination. Id. at 687, 93 S.Ct. at 1770. Finally, Browder noted without deciding that § 1985(3) “may well protect” groups suffering from gender-based discrimination. Browder, 630 F.2d at 1154 & n. 15; see also Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir.1971) (assuming without discussion that sex discrimination is actionable under § 1985(3)). In light of this court’s precedent, we find the conclusion inescapable that women constitute a cognizable class under § 1985(3). Gender is precisely the type of “immutable characteristic” that has consistently been held an improper basis upon which to differentiate individuals in" }, { "docid": "9622014", "title": "", "text": "n. 9, 91 S.Ct. at 1798, n. 9. In so choosing, however, the Court did not define the limits of the scope of protection provided by the second requirement for a § 1985(3) claim. It is this question which now confronts us. In the years following Griffin, the federal courts on numerous occasions have been faced with the question of whether non-racially motivated discrimination was actionable under § 1985(3). The result has been a wide range of decisions exhibiting conflicting views on the kinds of class-based discriminatory animus which come within the reach of the statute. Various decisions of the courts of appeal have found non-racial classes deserving of § 1985(3) protection. See, e.g., Hobson v. Wilson, 737 F.2d 1, 21 (D.C.Cir.1984) (political affiliation with racial overtones); Ward v. Connor, 657 F.2d 45, 47-48 (4th Cir.1981) (members of Unification Church), cert. denied, 455 U.S. 907 (1982); Hampton v. Hanrahan, 600 F.2d 600, 623 & n. 22 (7th Cir.1979) (racial political organization, Black Panther Party), rev’d in one aspect not relevant here, and cert. denied otherwise, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indian supporters of a political candidate), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975) (opponents of a political figure, the President), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of the Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir.1973) (supporters of a political candidate); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (members of a predominately white Catholic parish). In other decisions, however, those courts have not extended the protection of § 1985(3). See, e.g., Wilhelm v. Continental Title Co., 720 F.2d 1173 (10th Cir.1983) (handicapped persons); Taylor v. Brighton, 616 F.2d 256 (6th Cir.1980) (employees who wished to file racial, labor, and OSHA complaints); DeSantis v. Pacific Telephone and Telegraph Co., 608 F.2d 327 (9th Cir.1979) (homosexuals); Carchman v. Korman" }, { "docid": "12527225", "title": "", "text": "decided by our Court, however, paint quite a different picture of what groups constitute protected classes under § 1985(3). According to Edmunds: If ... it should appear that this conspiracy was formed against this man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter, (which is a pretty painful instance that I have in mind in the State of Florida within a few days where a man lost his life for that reason,) then this section could reach it. Cong. Globe, 42d Cong., 1st Sess. 567, 695-96 (1871). He makes a distinction between these class-based wrongs and other types of cases: We do not undertake in this bill to interfere with what might be called a private conspiracy growing out of a neighborhood feud of one man or set of men against another to prevent one getting an indictment in the State courts against men for burning down his barn . . Id Otherwise, Congress would have created a general federal tort law, which it did not intend to do. Senator Edmunds’ statement is the most detailed description in the legislative history of the type of class-based discrimination cognizable under § 1985. Because Edmunds was the Senate manager of the bill, we afford his statements great weight. If the Klan burns a barn because of racial, religious, political or sectional animus against the owner, they violate the statute. If they burn the barn simply out of personal enmity between the owner and the Klan’s Grand Dragon, there is no violation. The violation turns on the need for a class-based motivation for the wrong. In addition to these hypotheticals, we have several other examples of protected and unprotected classes. Following Griffin our Court has been faced at least eight times with groups claiming protection under § 1985. Among the legitimate § 1985(3) classes we have included supporters of a sheriff’s political opponent, Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973), anti-Nixon demonstrators, Giasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert." }, { "docid": "400201", "title": "", "text": "the discrimination was to give one creditor an unfair and unjust advantage over her as a debtor. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), discussing § 1985(3), stated: The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all. (Footnotes omitted.) The Supreme Court expressly declined to decide whether a conspiracy motivated other than by racial bias would be actionable under that section. 403 U.S. at 102 n.9, 91 S.Ct. 1790. This circuit has held the same kind of class-based discriminatory animus is required under that portion of § 1985(2) following the semicolon. Smith v. Yellow Freight System, Inc., 536 F.2d 1320 (10th Cir. 1976). We have also ruled that where there is no valid claim under § 1985 none can exist under § 1986. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977). The circuit court cases which have recognized under § 1985, classes which are not racially based, have stayed close to the areas protected by the First Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (employees with a certain political view). Debtors have not been recognized as a protected class as yet. Bankrupts have been expressly held not to be such a class in an en banc decision of the Fifth Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977). Surely if we should recognize debtors as a protected class it would be the largest in America. We do not have to make that decision, however, because the plaintiff is not complaining about a conspiracy against" }, { "docid": "12527227", "title": "", "text": "denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975), and members of the Jewish faith, Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973). On the other hand we have excluded classes formed by corporation employees fired for filing OSHA complaints, Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980), a non-Union employer, Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976), a business owner operating in an area rezoned exclusively for residential use, Studen v. Beebe, 588 F.2d 560 (6th Cir. 1978), an individual physician removed from a hospital staff, O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973), and an individual clothing store owner, Smith v. Martin, 542 F.2d 688 (6th Cir. 1976). Other Circuits have been faced with numerous similar classes claiming special protection under § 1985(3). Based on our previous cases and those from other Circuits, we see no analytical distinction between plaintiffs here and unprotected barn owners. IV. The words of § 1985 themselves provide guidance in how relevant distinctions are to be drawn between protected and unprotected classes. The phrases-“for the purpose of depriving . . . the equal protection of the laws, or . the equal privileges and immunities’-literally interpreted, refer to any non-random deprivation of rights. But these phrases were largely extracted from the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment. Equal protection under the Fourteenth Amendment requires varying degrees of equality, depending, inter alia, upon the particular class or the type of right that is affected. Congress, in using these words, did not intend that courts provide or withhold § 1985(3) protection based on distinctions on which the legislative history is silent and to which the Fourteenth Amendment is blind. The distinction between classes protected by § 1985(3) and those that are unprotected must be rooted somewhere in traditional equal protection analysis. Traditional equal protection analysis leads us to the conclusion that there is no distinction between plaintiffs’ class and that of the unprotected barn owner in Senator Edmunds’ hypothetical. Equal protection grants the same" } ]

[ { "docid": "4898349", "title": "", "text": "B. We begin our evaluation of these arguments with an examination of the Supreme Court’s decisions in Sandin and Wilkinson. In Sandin, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418, the Supreme Court addressed whether a prisoner’s sentence of thirty days of segregated confinement triggered due process considerations. It first observed that the Court previously had not addressed “whether disciplinary confinement of inmates itself implicates constitutional liberty interests.” Id. at 486, 115 S.Ct. 2293. The Court then held that a prisoner’s sentence of thirty days of segregated confinement “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” Id. It further concluded that the prisoner’s confinement “did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction,” nor did it affect the length of his sentence. Id. at 486-87, 115 S.Ct. 2293. The Supreme Court revisited the issue of prison segregation and due process rights in Wilkinson. In that case, prisoners were transferred to a maximum-security prison and placed in segregated confinement for an indefinite duration. Wilkinson, 545 U.S. at 214, 216-17. The prisoners were denied virtually all sensory and environmental stimuli, permitted little human contact and disqualified from parole eligibility. Id. at 214-15, 125 S.Ct. 2384. The Court concluded that although “any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context.” Id. at 224, 125 S.Ct. 2384. The Supreme Court’s decisions in San-din and Wilkinson establish that disciplinary segregation can trigger due process protections depending on the duration and conditions of segregation. See Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384; Sandin, 515 U.S. at 486, 115 S.Ct. 2293. Although the defendants contend that a prisoner’s due process protections are triggered only by indefinite segregation and parole disqualification, we have declined to read Wilkinson’s holding as being limited to its specific facts. See Westefer, 422 F.3d at 590 (“Illinois’ contention that the liberty interest identified in Wilkinson turned exclusively on the absence of parole constitutes, [in] our" } ]

[ { "docid": "20910914", "title": "", "text": "of a liberty interest in remaining in the general prison population and that the process that they were afforded in connection with the deprivation of that interest was inadequate. Second, they assert that the decision by the prison officials to continue their confinement in administrative segregation was so arbitrary that it resulted in a denial of substantive due process. In order to prevail on either a procedural or substantive due process claim, Inmates must first demonstrate that they were deprived of “life, liberty, or property” by governmental action. See Plyler v. Moore, 100 F.3d 365, 374 (4th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 826-27 (4th Cir.1995); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995). It is undisputed that Inmates were not deprived of life or property by governmental action; they claim only that the prison officials’ decision deprived them of a liberty interest in avoiding administrative segregation. States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (emphasis added) (citations omitted). Since there is no contention here, nor logically could there be, that the confinement to administrative segregation exceeds the sentence imposed in such an extreme way as to give rise to the protection of the Due Process Clause by its own force, the question before us is whether Inmates’ confinement in administrative segregation imposed such an atypical hardship on them vis a vis ordinary prison life that they possessed a liberty interest in avoiding it. In order to determine whether the inmates possessed a liberty interest, we must compare the conditions to which they were" }, { "docid": "23638914", "title": "", "text": "under Section 1983, a plaintiff must allege that the defendants deprived him of a right secured by the Constitution or laws of the United States, and that the defendants acted under color of state law.” Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7th Cir.2000); see also Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Here, Lekas has alleged that the State Defendants denied him a liberty interest protected by the due process clause of the Fourteenth Amendment by placing him in disciplinary segregation without affording him beforehand the procedural protections of due process. There is no dispute that Lekas’s complaint adequately alleges that the defendants acted under color of state law. What is in dispute is whether Lekas has sufficiently alleged a violation of a federal right. Lekas argues that his due process rights were violated because he was placed in disciplinary segregation without any evidence to support the key elements of the infraction of which he was charged, and because the IDOC failed to follow its own mandatory departmental rules for conducting his discipline hearing and administrative review. However, before wrestling with the contours and nuances of the process allegedly rendered or withheld, we must first determine whether any process was in fact constitutionally due. 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, § 1. Accordingly, the procedural protections of the Due Process Clause will only be triggered if state action implicates a constitutionally protected interest in life, liberty, or property. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (noting that - “whether due process requirements apply in the first place” depends on whether an “interest is within the Fourteenth Amendment’s protection of liberty and property”); see also Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken" }, { "docid": "4910622", "title": "", "text": "of defendants once again, concluding that plaintiff Howard had not been deprived of his due process rights and was therefore not entitled to damages. Howard I, 6 F.3d at 411. On appeal, this court reversed the judgment and remanded the ease for further proceedings, finding that the lower court’s findings of facts were clearly erroneous. Id. at 413-14. This court concluded that Howard had asserted a constitutionally protected liberty interest and directed the district court to determine “whether defendants’ conduct rose to the level of gross negligence or deliberate indifference that would be required to support an award of damages under § 1983.” Id. at 415. B. The facts underlying the two former appeals have been extensively set forth in Howard I and need not be repeated here. The question on appeal in Howard I was whether Howard had a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Applying procedural due pro cess analysis, this court concluded that the Michigan Prison regulations and policy directives at issue in that case created a liberty interest which was protected by the Due Process Clause. Id at 412. We held that “[c]ontinued confinement in protective custody after the reasons for such segregation no longer exist could constitute a violation of plaintiff s liberty interest-” Id. Similarly, we found that the regulation addressing security level classifications likewise created a protected liberty interest, which in the absence of notice or a hearing “could under certain circumstances constitute a violation of plaintiffs liberty interests.” Id at 413. On the transfer claim,'this court reversed the judgment of the lower court, which had concluded that Howard had suffered no deprivation of his liberty interest when he was transferred from the Riverside Correctional Facility (RCF) to the Huron Valley Men’s Facility (HVMF). This court concluded that the lower court’s findings of fact were clearly erroneous because, contrary to the district court’s findings, the record clearly indicated that Howard’s transfer was in violation of Michigan Department of Corrections (MDOC) regulations. Id. at 414. The district court framed the issue to be decided on remand as follows:" }, { "docid": "14787347", "title": "", "text": "is on the conduct which has allegedly injured the life, liberty or property interest, and on whether that conduct was negligent or involved some greater mental state, e.g., recklessness or deliberateness. The conduct which allegedly injured Franklin’s liberty interest, and which is therefore the focus of our Daniels inquiry, is the Disciplinary Board’s decision to place him in disciplinary segregation, rather than the Board’s alleged failure to afford adequate procedures by not rendering a post-hearing written statement. Accordingly, we examine the decision of the Board to determine whether it was deliberate and intentional or merely negligent. The support for this approach is found in Daniels itself. There, the plaintiff argued that at least some § 1983 due process claims based on negligent conduct are permitted and “cite[d] as an example the failure of - a State to comply with the procedural requirements of Wolff v. McDonnell, [418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ] before depriving an inmate of good-time credit.” Daniels, 106 S.Ct. at 666. The Court rejected the plaintiff’s argument and characterization of Wolff, describing Wolff in the following manner: We think the relevant action of the prison officials in that [Wolff\\ situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause. Id. From this statement it is clear that the “relevant action” in the present case is the Disciplinary Board’s “deliberate decision” to place Franklin in disciplinary segregation. Thus, the Board’s deliberate decision constituted an intentional deprivation of Franklin’s protected liberty interest, regardless of whether the Board negligently failed to render a written statement. The Due Process Clause is implicated by such deliberate, intentional conduct. Accordingly, we find that Franklin was deprived of a protected liberty interest within the meaning of the Fourteenth Amendment and therefore hold that Franklin’s due process claim is actionable under § 1983. C. Thus far, we have found that Franklin had a protected liberty interest and that he was deprived of that interest in a manner actionable under § 1983. We" }, { "docid": "7671149", "title": "", "text": "in this case is whether the defendants acted in a manner that deprived plaintiff Campo of any rights, privileges, or immunities secured by the Constitution. C. The Protected Liberty Interest under Sandin Before evaluating plaintiffs claims regarding defendants’ conduct at the disciplinary hearing, the Court must first determine whether or not Campo has asserted a violation of a protected liberty interest. If Cam-po was not deprived of a protected liberty interest, his cause of action must be dismissed whether or not defendants failed to conduct his disciplinary hearing in accordance with required procedures. In a recent case that reexamined how state prison regulations can create protected liberty interests, the Supreme Court held that while states may create liberty interests protected by the Due Process Clause, such state-created liberties are generally limited to: freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, ... nevertheless impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, — U.S.-,-, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (citations omitted). In so holding, the Supreme Court reaffirmed a longstanding principle that “[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The inmate plaintiff in Sandin alleged a violation of due process under 42 U.S.C. § 1983. The alleged violation occurred at a hearing where plaintiff was sentenced to thirty-day disciplinary segregation in the Special Holding Unit of a Hawaii prison for “high misconduct.” Sandin, — U.S. at-, 115 S.Ct. at 2296. The Supreme Court found that the thirty-day segregation sentence was “within the range of confinement to be normally expected for one serving a indeterminate term of 30 years to life” in a maximum security prison, and, therefore, was not an “atypical and significant deprivation in which a state might conceivably create a liberty interest.” Id. at-, 115 S.Ct. at 2301. In so holding, the" }, { "docid": "23098398", "title": "", "text": "Court’s grant of summary judgment in Defendants’ favor. We consider each in turn. 1. Constitutional Challenges a. Due Process Clause Claim The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. A court reviewing a procedural due process claim first determines whether the plaintiff asserts an interest protected by the Fourteenth Amendment. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000). If the court concludes that such an interest exists, the next issue is whether the procedures provided to the plaintiff afforded that individual due process of law. Id. i. Identifiable Liberty Interest While an inmate’s constitutional rights are diminished in prison, “a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Nonetheless, a convicted criminal’s liberty interest is subject to “the nature of the regime to which [(s)he has] been lawfully committed.” Id. at 556, 94 S.Ct. 2963. “Among the historic liberties protected by the Due Process Clause is the right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Vitek v. Jones, 445 U.S. 480, 492, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (internal quotations & citation omitted). Nevertheless, “changes in the conditions of confinement having a substantial adverse impact on [a] prisoner are not alone sufficient to invoke the protections of the Due Process Clause as long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him.” Id. at 493, 100 S.Ct. 1254 (internal quotations & alteration omitted). A prisoner may be deprived of a liberty interest in violation of the Constitution in two ways: (1) when severe changes in conditions of confinement amount to a grievous loss that should not be imposed without the opportunity for notice and an adequate hearing, id. at 488, 100 S.Ct. 1254; and (2) when state statutes and regulations create a liberty interest" }, { "docid": "2344691", "title": "", "text": "of life, liberty, or property.”). The panel opinion conceded (as the majority opinion now concedes) that Coggin needed to establish causation to prevail, but contended that he had met that burden because the LISD made the final decision to terminate him knowing he had not received a hearing. Thus, the panel opinion concluded, the LISD deprived Coggin of his property without due process of law. Coggin v. Longview Indep. Sch. Dist., 289 F.3d 326, 336-38 (5th Cir.2002). The problem with the panel opinion’s analysis, however, is that it focused on the wrong causation issue. It based its causation analysis on who deprived Coggin of his protected property interest, when the real issue is who deprived Coggin of his procedural due process right. Careful consideration of the right to procedural due process reveals the heart of a due process violation. Procedural due process does not protect one from the deprivation of life, liberty or property, but rather “from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (emphasis added). In other words, the key to a procedural due process claim is whether the plaintiff was afforded the quantity of process to which he was constitutionally entitled prior to the deprivation of a protected interest. In Zinermon v. Burch, the Supreme Court described the right to procedural due process as follows: The Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure.... In procedural due process claims, the deprivation by.state action of a constitutionally protected interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. ... The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. 494 U.S. 113, 125-126, 110 S.Ct. 975," }, { "docid": "11285126", "title": "", "text": "connection with the plaintiffs grievance. The grievance committee did not find any merit to the plaintiffs claim and dismissed the case. The plaintiff appealed the dismissal to defendant Acting Superintendent Hanslmaier; Hanslmaier subsequently denied the appeal. Seemingly in protest of the handling of his claim, the plaintiff thereafter chose not to keep his rescheduled appointment at the dental clinic on July 6, 1994. The plaintiff also claims that, as a result of his arguments and complaints following the rescheduling of his dental appointment, he was threatened by parties unidentified in the complaint. The plaintiff alleges he was told that, if he continued to complain, a “Direct Order” report detailing his misbehavior would be filed against him, he would suffer physical violence, he could incur further detention in keeploek, and he might be subject to segregation. The plaintiffs first claim is that he was denied his Fourteenth Amendment right to Due Process because he was denied adequate dental care. The Fourteenth Amendment provides that a State shall not “deprive any person of life, liberty, or property, without due process of law_” U.S. CONST. amend. XIV, § 1. To allege a Fourteenth Amendment Due Process violation in this case, the plaintiff must allege that he was deprived of a constitutionally protected liberty interest. In determining whether state officials have deprived an inmate, such as the plaintiff, of such a protected “liberty” interest, the Supreme Court has recently instructed that: States may under certain circumstances create liberty interests which are protected by the Due Process Clause.... these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, — U.S. -, -, 115 S.Ct. 2293, 2295, 132 L.Ed.2d 418 (1995). Sandin thus held that, for an inmate to prove he was deprived of a liberty interest protected by the Fourteenth Amendment, the inmate must meet the standard of" }, { "docid": "7775744", "title": "", "text": "found not to have violated any substantive right”). The disposition of this appeal, therefore, hinges on whether defendants violated plaintiffs procedural. due process rights. A. It is well-established that “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see Erickson v. United States, 67 F.3d 858, 861 (9th Cir.1995) (“ ‘[a] due process claim is cognizable only if there is a recognized liberty or property interest at stake’ ”) (quoting Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir.1995)). [TJhese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 483, 115 S.Ct. 2293 (citations omitted) (emphasis added). Defendants do not argue that plaintiff was afforded a fair hearing. Rather, defendants argue that plaintiff cannot be heard to complain that his disciplinary process violated due process because he has not demonstrated the existence of a “liberty interest” as required by the Court in Sandin. The essence of defendants’ argument is that inmates must demonstrate the existence of a liberty interest before they can argue that they are entitled to procedural due process. See Erickson, 67 F.3d at 861. Moreover, defendants argue that plaintiff was not entitled to relief in the district court because (1) the Supreme Court has generally limited a prisoner’s “liberty interests” to those restraints which “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 483, 115 S.Ct. 2293; (2) the district court concluded that plaintiff suffered no such atypical hardship; and (3) the plaintiff has not contested this conclusion. We disagree. B. It is true that “once society has validly convicted an individual of a crime and" }, { "docid": "22641823", "title": "", "text": "while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citations omitted). In Sandin, the prisoner contended that the disciplinary hearing that preceding his placement in disciplinary segregation did not afford him procedural due process. Id. at 476, 115 S.Ct. 2293. The Court concluded, at the summary judgment stage, that the prisoner’s “discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest” and, therefore, he had no constitutional right to due process in connection with that confinement. Id. at 486, 115 S.Ct. 2293. To reach this conclusion, the Court carefully examined the specific conditions of the prisoner’s confinement. The Court determined that the prisoner’s conditions essentially “mirrored those conditions imposed upon inmates in administrative segregation and protective custody,” so the prisoner’s “confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.” Id. Based upon its comparison of inmates inside and outside disciplinary segregation, the Court concluded that the conditions to which the prisoner was subjected as a result of the allegedly faulty disciplinary hearing were “within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life,” and, therefore, neither the Due Process Clause nor state law afforded the prisoner a protected liberty interest. Id. at 487, 115 S.Ct. 2293. Here, the district court did not have evidence before it from which it could engage in the analysis required by Sandin and determine whether the conditions of plaintiffs confinement presented the type of atypical, significant deprivation that would implicate a liberty interest. Plaintiffs allegations, accepted as true, showed that he is confined in an eight-foot by fourteen-foot concrete cell for twenty-three and one-half hours a day. He is permitted to leave his cell for thirty minutes" }, { "docid": "8388705", "title": "", "text": "present witnesses at his disciplinary hearing and then sentenced him to 30 days in segregation. The Supreme Court held that neither the Hawaii prison regulations nor the Due Process Clause afforded the inmate a liberty interest entitling him to the procedural protections afforded by the Constitution. Id. at —, 115 S.Ct. at 2301. The Court found that while States can create liberty interests, those interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected mariner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at —, 115 S.Ct. at 2299 (citations omitted). The Court determined that the inmate’s placement in disciplinary segregation for thirty days “did not work a major disruption [in the plaintiffs] environment” and thus, did not constitute the “kind of atypical, significant deprivation in which a state might create a liberty interest.” Id. at —-—, 115 S.Ct. at 2300-01. The decision in San-din applies retroactively. Samuels v. Mockry, 77 F.3d 34, 37 (2d Cir.1996). Here, there is disagreement as to how long plaintiff was placed in SHU. The court will assume for purposes of this discussion that plaintiffs stay in SHU was for 35 days, as he argues. In applying Sandin, plaintiff has not alleged any “atypical” and “significant deprivation” resulting from his stay in SHU “in relation to the ordinary incidents of prison life.” Plaintiff did not have a protected liberty interest in remaining free from SHU entitling him to the procedural protections required under the Constitution. Even if a liberty interest existed, defendants satisfied the minimum due process requirements. Plaintiff was given notice of the charges against him and an opportuni ty to present his views to the UDC and the DHO within a reasonable amount of time. See Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). Accordingly, summary judgment will be granted on these claims. 4. Equal Protection Plaintiff alleges that defendants Lynch, Ramlal" }, { "docid": "5983766", "title": "", "text": "the defendants’ failure to respond to plaintiffs Request for Admissions, the Second Circuit has expressed a strong preference for adjudicating cases on the merits. See Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir.1995); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.1993). Therefore, I deny plaintiffs motion for summary judgment based on defendants’ failure to respond. C. Defendants’ Motion for Summary Judgment 1. Fourteenth Amendment Claim Plaintiff argues that defendants’ actions in connection with his disciplinary hearings and SHU confinement violated his due process rights. Defendants move for summary judgment on the ground that plaintiff was not deprived of a liberty interest and, therefore, was not entitled to procedural due process protections. Alternatively, defendants argue that even if plaintiff possessed a liberty interest, he was afforded the appropriate due process. The Fourteenth Amendment to the United States Constitution prohibits, inter alia, the deprivation of liberty without due process of law. The two threshold questions on any claim for denial of procedural due process are whether plaintiff possessed a constitutionally protected liberty interest and, if so, what process was due before plaintiff could be deprived of that interest. Green v. Baum, 46 F.3d 189,194 (2d Cir.1995). In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995), the Supreme Court held that disciplinary confinement does not implicate a liberty interest unless that confinement “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin did not, however, “create a per se blanket rule that disciplinary confinement may never implicate a liberty interest.” Miller v. Selsky, 111 F.3d 7, 9 (2d Cir.1997). Rather, district courts are required to make factual findings with respect to the conditions of confinement at issue in each case. Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997); Brooks v. DiFas% 112 F.3d 46, 49 (2d Cir.1997); Miller, 111 F.3d at 9. The duration of the inmate’s disciplinary confinement is relevant to this factual inquiry, as is the restrictiveness of the conditions imposed in relation to the prevailing conditions in the" }, { "docid": "8388704", "title": "", "text": "a motion to recall the mandate setting forth the bases as to why the court’s September 26, 1991, decision was erroneous. Plaintiff has submitted no evidence to show that he filed such a motion after his October transfer to El Reno. Accordingly, summary judgment will be granted on this claim. 3. Failure to Provide Hearing Prior to Placement in SHU and Failure to Afford an Adequate Hearing While in SHU Plaintiff claims that defendants violated his due process rights by placing him in SHU without a hearing, by not providing him with an impartial UDC hearing, and by failing to allow him to produce a witness at the UDC hearing and produce his medical records at the DHO hearing. The threshold issue under any due process claim is whether a protected liberty or property interest is involved. In Sandin v. Conner, — U.S. —, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), a Hawaii state prisoner alleged that he had been deprived of procedural due process when the prison adjustment committee refused to allow him to present witnesses at his disciplinary hearing and then sentenced him to 30 days in segregation. The Supreme Court held that neither the Hawaii prison regulations nor the Due Process Clause afforded the inmate a liberty interest entitling him to the procedural protections afforded by the Constitution. Id. at —, 115 S.Ct. at 2301. The Court found that while States can create liberty interests, those interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected mariner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at —, 115 S.Ct. at 2299 (citations omitted). The Court determined that the inmate’s placement in disciplinary segregation for thirty days “did not work a major disruption [in the plaintiffs] environment” and thus, did not constitute the “kind of atypical, significant deprivation in which a state might create a liberty interest.” Id. at —-—, 115 S.Ct. at 2300-01." }, { "docid": "23638915", "title": "", "text": "mandatory departmental rules for conducting his discipline hearing and administrative review. However, before wrestling with the contours and nuances of the process allegedly rendered or withheld, we must first determine whether any process was in fact constitutionally due. 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, § 1. Accordingly, the procedural protections of the Due Process Clause will only be triggered if state action implicates a constitutionally protected interest in life, liberty, or property. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (noting that - “whether due process requirements apply in the first place” depends on whether an “interest is within the Fourteenth Amendment’s protection of liberty and property”); see also Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”). Thus it follows that a plaintiff cannot under Section 1983 complain of procedural due process violations unless the state has first deprived him or her of such a constitutionally protected interest. Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (“We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” (citations omitted)); Williams v. Ramos, 71 F.3d 1246, 1248-49 (7th Cir.1995) (“When a plaintiff brings an action under § 1983 for procedural due process violations, he must show that the state deprived him of a constitutionally protected interest in ‘life, liberty, or property’ without due process of law.”) (citing Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). Here, the alleged deprivation to Lekas was his placement in disciplinary segregation-—-purportedly in contravention of" }, { "docid": "22641822", "title": "", "text": "other than the threatened loss of the constitutional right.” 158 F.3d at 1346. We agree with our sister circuits that § 1997e(e) does not affect actions for declaratory or injunctive relief. Therefore, even if the district court determines that plaintiff cannot pursue his damage claims arising from the face mask and exercise restrictions, § 1997e(e) would not bar claims for injunctive relief relating to those restrictions. IV. Due Process. “The Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law.” Meachum v. Fano, 427 U.S. 215, 223, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). A prisoner’s liberty interests may arise either from the Due Process Clause itself or from state law. See Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). “The Due Process Clause standing alone offers prisoners only a narrow range of protected liberty interests.” Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994) (quotation omitted). State-created liberty interests, in turn, are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citations omitted). In Sandin, the prisoner contended that the disciplinary hearing that preceding his placement in disciplinary segregation did not afford him procedural due process. Id. at 476, 115 S.Ct. 2293. The Court concluded, at the summary judgment stage, that the prisoner’s “discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest” and, therefore, he had no constitutional right to due process in connection with that confinement. Id. at 486, 115 S.Ct. 2293. To reach this conclusion, the Court carefully examined the specific conditions of the prisoner’s confinement. The Court determined that the prisoner’s conditions essentially “mirrored those conditions imposed upon inmates in administrative segregation" }, { "docid": "7942433", "title": "", "text": "its face violates the Equal Protection Clause”). IV. Due Process Claim The complaint alleges that “[defendants ... deprived plaintiff of his federally protected civil right[ ] to ... due process.... ” Dkt. # 21 ¶ 60. Plaintiff alleges that defendants did so by “commencing and con tinuing prosecution of him without first affording him an opportunity for a hearing with regard to the charges levied against him and by charging him with a violation^) they knew or should have known was not sustainable under the law.” Id. ¶ 62. Defendants contend that to the extent that plaintiff attempts to assert a procedural due process claim, this claim should be dismissed because the undisputed facts show that plaintiff received all the process which he was due, including notice and an opportunity to be heard. Defendants also contend that plaintiff cannot show “conscience-shocking” action giving rise to a substantive due process claim. Plaintiff does not appear to be pursuing this claim, as neither his initial nor supplemental memorandums of law (Dkt.# 33-5, #46) address it. In any event, I see no basis for a due process claim here. Plaintiff has cited no authority that he is entitled to notice or an opportunity to be heard before charges are brought against him. All that is required is that he receive notice and an opportunity to be heard before being deprived of a protected liberty or property interest. See McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dep’t of Bus. Reg. of Florida, 496 U.S. 18, 37, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) Marco Outdoor Advertising, Inc. v. Regional Transit Auth., 489 F.3d 669, 673 (5th Cir.2007). Since the charges here were eventually dropped, plaintiff was not deprived of any such interest. Furthermore, the record shows that he was given notice and an opportunity to be heard. I also agree with defendants that plaintiffs allegations and the evidence do not show that any actions taken by defendants constituted the type of egregious conduct necessary to make out a substantive due process claim. See Arar v. Ashcroft, 532 F.3d 157, 204 (2d Cir.2008)" }, { "docid": "18575060", "title": "", "text": "temporarily housed with Level IV inmates. In this regard the evidence is particularly scant. For example, there is no showing that assaults against Level I cellmates increased during the time the gymnasium was closed. Indeed, plaintiffs have identified only two instances where Level I inmates were assaulted by Level IV cellmates. In one such instance, the inmate, Charles Campbell, suffered a gruesome attack causing him to lose the tip of his nose. While Campbell’s testimony provided a moving and chilling account of this incident, neither a single incident nor isolated incidents is sufficient to demonstrate a pervasive risk of harm to Level I inmates. Fisher, 692 F.Supp. at 1560. Given that plaintiffs have not established a pervasive risk of harm to Level I inmates, we do not reach the question whether defendants possessed the requisite mental state of deliberate indifference. F. SEGREGATION OF PRISON GANG AFFILIATES The Due Process clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty or property, without due process of law.” Under defendants’ current policy, inmates who are found to be affiliated with a prison gang are removed from the general prison population and confined in the SHU for an indeterminate term. Whether this practice is implemented in a manner consistent with constitutional guarantees of procedural due process is the issue before the Court. Defendants assert that current procedures satisfy or exceed due process requirements, while plaintiffs argue that they are constitutionally flawed in a number of respects. These flaws fall into two categories: (1) flaws in the procedural safeguards afforded to inmates suspected of gang affiliation, and (2) flaws in procedures governing the periodic review of inmates assigned to indeterminate terms in the SHU for prison gang affiliation. To resolve this dispute we must first determine whether plaintiffs have a constitutionally protected liberty interest in remaining in the general prison population. Toussaint IV, 801 F.2d at 1089. If so, we must determine the amount of process due before they can be deprived of this liberty interest because of affiliation with a prison gang. Id. at 1098. Finally, we" }, { "docid": "2586203", "title": "", "text": "entitles prisoners to “claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), quoted in Childers v. Maloney, 247 F.Supp.2d 32, 36 (D.Mass., 2003). In order to establish a due process violation, however, Orwat has the “difficult burden,” Childers, 247 F.Supp.2d at 36, of establishing both “that the disciplinary proceeding against him did not meet the applicable due process standards,” and “that he was deprived of a protected due process interest as a result.” Id. The Court determines that Orwat’s claim fails on both bases. In Count 6, Orwat effectively alleges the disciplinary hearing failed to meet due process standards because, inter alia, the hearing officer was biased; the hearing officer did not require witnesses to be sworn in and limited Orwat’s cross-examination of certain witnesses; and the hearing officer’s findings are unsupported by the evidence. Orwat further maintains that he was deprived of a protected liberty interest when the defendants confined him in a segregation unit on January 26, 2001, while the investigation was purportedly being completed; provided no notice to Or-wat about the hearing until April 23, 2001; delayed a hearing on the matter until July 10, 2001; and confined him in the segregation unit until the hearing officer released her decision on September 3, 2001. (# 1 ¶¶ 51-52). He further alleges that he was denied procedural safeguards mandated by 103 Mass. Regs. § 430.19 (1978) because he was confined in the segregation unit for an unreasonable amount of time before the hearing. The Court considers each of these arguments. a. Was there a protected liberty interest? Orwat argues that the defendants deprived him of a liberty interest when he was placed in a segregation unit for eight months following the incident. However, “[t]he Due Process Clause will not in most circumstances confer on an inmate a liberty interest in freedom from disciplinary procedures and heightened conditions of confinement.” Balsavich v. Mahoney, 2004 WL 1497687, *3 (D.Mass.2004) (citing Sandin v." }, { "docid": "14787346", "title": "", "text": "conduct. As such, the defendants claim, the conduct did not constitute a “deprivation” of Franklin's liberty interest within the meaning of the Fourteenth Amendment. The defendants conclude that Franklin therefore has not alleged a procedural due process violation cognizable under § 1983 and request that his action be dismissed. We disagree with the defendants’ interpretation and application of Daniels. Whether or not the Board negligently failed to render a written statement, Daniels does not apply to preclude Franklin’s procedural due process claim. In light of Daniels, three inquiries must be made to determine whether, in a § 1983 action, a procedural due process violation has been established. They are: (1) whether the claimant has established a life, liberty or property interest protected by the Due Process Clause; (2) whether that interest was “deprived” within the meaning of the Due Process Clause; and (3) whether adequate procedures were afforded prior to the deprivation of the protected interest. Daniels relates exclusively to the second inquiry. Under Daniels, the focus in determining whether a protected interest is “deprived” is on the conduct which has allegedly injured the life, liberty or property interest, and on whether that conduct was negligent or involved some greater mental state, e.g., recklessness or deliberateness. The conduct which allegedly injured Franklin’s liberty interest, and which is therefore the focus of our Daniels inquiry, is the Disciplinary Board’s decision to place him in disciplinary segregation, rather than the Board’s alleged failure to afford adequate procedures by not rendering a post-hearing written statement. Accordingly, we examine the decision of the Board to determine whether it was deliberate and intentional or merely negligent. The support for this approach is found in Daniels itself. There, the plaintiff argued that at least some § 1983 due process claims based on negligent conduct are permitted and “cite[d] as an example the failure of - a State to comply with the procedural requirements of Wolff v. McDonnell, [418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ] before depriving an inmate of good-time credit.” Daniels, 106 S.Ct. at 666. The Court rejected the plaintiff’s argument" }, { "docid": "12272779", "title": "", "text": "inmates with procedural due process before putting them on “lockdown.” Woods claims that he received neither notice of what he had done wrong in that defendants either did not issue a disciplinary ticket or issued a false one, nor a pre-deprivation hearing before being confined to his cell. The district court rejected this argument on the authority of Cain v. Lane, 857 F.2d 1139 (7th Cir.1988), in which this court concluded that “Illinois’ administrative and statutory provisions do not create a liberty interest [in remaining in the general population].” Woods seeks to distinguish Cain by arguing that Cain involved rules other than the ones on which he relies. The fourteenth amendment prohibits a state from depriving a person of life, liberty or property without due process of law. U.S. Const. amend. XIV. While the due process clause does not itself create a liberty interest in remaining in the general population and out of temporary confinement, see Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983); Cain, 857 F.2d at 1143, state law may create enforceable liberty interests in the prison setting. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. -, -, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989). Thus, in deciding whether Woods’ right to due process was violated, we must first look to Illinois statutes and administrative regulations to determine whether they have created a protected liberty interest. If they have, then we must determine what process is due Woods before prison officials may deprive him of that interest. Id. at-, 109 S.Ct. at 1908. Although “state statutes may create liberty interests that are entitled to the procedural protections of [the due process clause],” Vitek v. Jones, 445 U.S. 480, 487, 100 S.Ct. 1254, 1260, 63 L.Ed.2d 552 (1980), “[t]he adoption of mere procedural guidelines ... does not give rise to a liberty interest.” Culbert v. Young, 834 F.2d 624, 628 (7th Cir.1987), cert. denied, 485 U.S. 990, 108 S.Ct. 1296, 99 L.Ed.2d 506 (1988). “To create a constitutionally protected liberty interest, a state must employ ‘language of an unmistakably mandatory" } ]

[ { "docid": "22195965", "title": "", "text": "well equipped to treat each offense and offender individually, and we should not create special sentencing rules and procedures for terrorists. In presiding over the many terrorism-related cases on their dockets, courts have treated other issues in terrorism cases in ways that do not differ appreciably from more broadly applicable doctrines. See, e.g., Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2079, 2083, 179 L.Ed.2d 1149 (2011) (holding that ordinary qualified immunity standard protects officials in a suit alleging an unconstitutional use of the material witness statute for detaining terrorism suspects); Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 905-06, 908-12 (9th Cir.2011) (concluding that a putative class representative had constitutional and prudential standing to challenge the government’s post-September 11 policy of widespread warrantless eavesdropping); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 167 (2d Cir.2008) (applying traditional principles to hold that the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness); MacWade v. Kelly, 460 F.3d 260, 263 (2d Cir.2006) (upholding government’s use of random, suspicionless container searches in the New York City subway system, on grounds that preventing a subway terrorist attack is a non-investigative special need within the meaning of Fourth Amendment doctrine); see also Aziz Huq, Against National Security Exceptionalism, 2009 Sup.Ct. Rev. 225, 226 (concluding that courts’ responses to national security emergencies do not treat terrorism as different, but rather “align more closely with ... judicial responses to nonsecurity emergencies”). Just as we have resisted treating terrorism differently in these cases, we ought to resist doing so in reviewing sentences for reasonableness as well. The majority expresses concern that the 22 years meted out, including years already served, means that Ressam will be only 51 years old at the time of his release. The district court, of course, was well aware of Ressam’s age, having presided over his case for nine years and having faced him at two sentencings. The district court thus took into account what the majority" } ]

[ { "docid": "21659489", "title": "", "text": "the Foreign Intelligence Surveillance Court (“FISC”) for an order requiring the “production of any tangible things ... for an investigation to protect against,” among other things, “international terrorism.” Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861(a)(1)). In May 2006 — after the Government sought and received authorization from judges of the FISC — the NSA began the bulk telephony metadata program that plaintiffs challenge today. See Klayman I, Decl. of Acting Assistant Dir. Robert J. Holley, FBI, ¶ 6 [Dkt. # 25-5]; Klayman I, Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA, ¶ 13 [Dkt. # 25-4]. As part of this program, the NSA conducted daily bulk collection, storage, and analysis of telephony metadata. See id. From May 2006 until the termination of the program in November 2015, the Government obtained FISC orders directing certain telecommunications service providers to produce, in bulk, call-detail records, which contained metadata about telephone calls, including the time andv duration of a call and the dialing and .receiving numbers. Klayman I, Decl. of Wayne Murphy, Dir. of Operations, NSA, ¶¶6-7 (“Murphy Deck”) [Dkt. # 178-2]; Murphy Deck Ex. A (“Aug. 27, 2015 FISC Order”). The FISC orders expressly excluded the content of the call as well, as “the name, address, or financial information of a [telephone] subscriber or customer.” See Aug. 27, 2015 FISC Order at 3 n.1. In total, the FISC authorized the program forty-three times, under orders issued by at least nineteen different FISC judges. See Murphy Decl. ¶ 7. ■Under the program, once the data was collected, the Government created a repository where data could be accessed and queried by NSA analysts for the purpose of detecting and preventing terrorist attacks. Id. ¶¶ 6, 8-9. Among other minimization procedures designed to protect privácy interests of U.S. citizens, FISC orders authorizing the program required that metadata obtained through the program- be destroyed within five years of collection. Id. ¶ 11. ■ Beginning in March 2014, however, the FISC authorized the NSA to delay the destruction of metadata that had passed the five-year mark. Id. This" }, { "docid": "2982379", "title": "", "text": "analysis purposes” (emphases added)). These procedures in no way mitigate the privacy intrusion that occurs when the NSA collects, queries, and analyzes metadata. ’And that’s even assuming the Government complies with all of its procedures' — • an assumption that is not supported by the NSA’s spotty track record to date. See supra notes 23-25 and accompanying text. . It bears noting that the Government’s interest in stopping and prosecuting terrorism has not led courts to abandon familiar doctrines that apply in criminal cases generally. See United States v. Ressam, 679 F.3d 1069, 1106 (9th Cir.2012) (Schroeder, J., dissenting) (collecting cases in which \"courts have treated other issues in terrorism cases in ways that do not differ appreciably from more broadly applicable doctrines”). In fact, the Supreme Court once expressed in dicta that an otherwise impermissible roadblock “would almost certainly” be allowed \"to thwart an imminent terrorist attack.” City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (emphases added). The Supreme Court has never suggested that all Fourth Amendment protections must defer to any Government action that purportedly serves national security or counterterrorism interests. . Such candor is as refreshing as it is rare. . The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA's surveillance programs have prevented fifty-four terrorist attacks, no proof of that has been put before me. See also Justin Elliott & Theodoric Meyer, Claim on ‘Attacks Thwarted’ by NSA Spreads Despite Lack of Evidence, ProPublica.org (Oct. 23, 2013), http://www.propublica.org/article/ claim-on-attacks-thwarted-by-nsa-spreadsdespite-lack-of-evidence (“ 'We’ve heard over and over again the assertion that 54 terrorist plots were thwarted’ by the [NSA’s] programs.... 'That’s plainly wrong.... These weren’t all plots and they weren't all thwarted. The American people are getting left with the inaccurate impression of the effectiveness of the NSA programs.’ ” (quoting Sen. Patrick Leahy)); Ellen Nakashima, NSA’s need to keep database questioned, Wash. Post, Aug. 9, 2013, at A01 (\"[Senator Ron] Wyden noted that [two suspects arrested after an" }, { "docid": "12652723", "title": "", "text": "not seriously dispute appellants’ contention that all significant service providers in the United States are subject to similar orders. The government explains that it uses the bulk metadata collected pursuant to these orders by making “queries” using metadata “identifiers” (also referred to as “selectors”), or particular phone numbers that it believes, based on “reasonable articulable suspicion,” to be associated with a foreign terrorist organization. Joint App’x 264 (Declaration of Teresa H. Shea). The identifier is used as a “seed” to search across the government’s database; the search results yield phone numbers, and the metadata associated with them, that have been in contact with the seed. Id. That step is referred to as the first “hop.” The NSA can then also search for the numbers, and associated metadata, that have been in contact with the numbers resulting from the first search — conducting a second “hop.” Id. at 265. Until recently, the program allowed for another iteration of the process, such that a third “hop” could be conducted, sweeping in results that include the metadata of, essentially, the contacts of contacts of contacts of the original “seed.” Id. The government asserts that it does not conduct any general “browsing” of the data. Id. at 263-65. Section 215 requires that the Attorney General adopt “specific minimization procedures governing the retention and dissemination by the [government] of [information] received ... in response to an order under this subchapter.” 50 U.S.C. § 1861(g)(1). The procedures that have been adopted include the requirement that the NSA store the metadata within secure networks; that the metadata not be accessed for any purpose other than what is allowed under the FISC order; that the results of queries not be disseminated outside the NSA except in accordance with the minimization and dissemination requirements of NSA procedures; and that the relevant personnel receive comprehensive training on the minimization procedures and technical controls. Joint App’x 267-69. And as the government points out, the program is subject to oversight by the Department of Justice, the FISC, and Congress. Id. at 269. The minimization procedures require audits and reviews of the program" }, { "docid": "2982324", "title": "", "text": "metadata collection is that “it enables the Government to quickly analyze past connections and chains of communication,” and “increases the NSA’s ability to rapidly detect persons affiliated with the identified foreign terrorist organizations.” Shea Decl. ¶ 46 (emphases added); see also id. ¶ 59 (“Any other means that might be used to attempt to conduct similar analyses would require multiple, time-consuming steps that would frustrate needed rapid analysis in emergent situations, and could fail to capture some data available through bulk metadata analysis.” (emphases added)). FBI Acting Assistant Director of the Counterterrorism Division Robert J. Holley echoes Director Shea’s emphasis on speed: “It is imperative that the United States Government have the capability to rapidly identify any terrorist threat inside the United States.” Holley Deck ¶ 4 (emphasis added); see also id. ¶¶ 28-29 (”[T]he agility of querying the metadata collected by NSA under this program allows for more immediate contact chaining, which is significant in time-sensitive situations.... The delay inherent in issuing new national security letters would necessarily mean losing valuable time.... [Aggregating the NSA telephony metadata from different telecommunications providers enhances and expedites the ability to identify chains of communications across multiple providers.” (emphases added)). Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk meta-data collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. See Holley Deck ¶¶ 24-26. In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” Id. ¶ 24. Assistant Director Holley does not say that the metadata revealed any new information— much less time-sensitive information- — - that had not already come to light in the investigation up to that point. Id. In the" }, { "docid": "21659490", "title": "", "text": "of Wayne Murphy, Dir. of Operations, NSA, ¶¶6-7 (“Murphy Deck”) [Dkt. # 178-2]; Murphy Deck Ex. A (“Aug. 27, 2015 FISC Order”). The FISC orders expressly excluded the content of the call as well, as “the name, address, or financial information of a [telephone] subscriber or customer.” See Aug. 27, 2015 FISC Order at 3 n.1. In total, the FISC authorized the program forty-three times, under orders issued by at least nineteen different FISC judges. See Murphy Decl. ¶ 7. ■Under the program, once the data was collected, the Government created a repository where data could be accessed and queried by NSA analysts for the purpose of detecting and preventing terrorist attacks. Id. ¶¶ 6, 8-9. Among other minimization procedures designed to protect privácy interests of U.S. citizens, FISC orders authorizing the program required that metadata obtained through the program- be destroyed within five years of collection. Id. ¶ 11. ■ Beginning in March 2014, however, the FISC authorized the NSA to delay the destruction of metadata that had passed the five-year mark. Id. This retention was authorized as a means of allowing the Government to comply with its obligation to preserve potentially relevant evidence under orders issued in two civil cases involving challenges to the legality of the Section 215 program. See Jewel v. Nat’l Sec. Agency, No. 4:08-cv-4373-JSW (N.D. Cal. filed Sept. 18, 2008); First Unitarian Church of L.A. v. Nat’l Sec. Agency, No. 4:13-cv-3287-JSW (N.D. Cal. filed July 16, 2013); Murphy Decl. ¶ 11. B. The Bulk Internet-Metadata Program Under FISA’s Pen-Trap Provision Although the surveillance scheme conducted pursuant to FISA’s pen-trap provision features less prominently in this litigation than the Section 215 program, a brief history of that program would likely be helpful at this point. From July 2004 until December 2011, the NSA also engaged in the bulk collection of Internet metadata, authorized by FISC orders issued pursuant to Section 402 of FISA, otherwise known as FISA’s pen-register and trap-and-trace provision. See 50 U.S.C. § 1842; Murphy Decl. ¶¶ 19-20. Under section 402, the Government collected data from the “to” and “from” lines of e-mails," }, { "docid": "2982295", "title": "", "text": "2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected telephony metadata from Verizon. See Apr. 25, 2013 Secondary Order. Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson’s order names only Verizon Business Network Services (“VBNS”) as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. See Govt.’s Opp’n at 21 & n.9. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT & T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it “creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light.” Govt.’s Opp’n at 12 (emphasis added); see also id. at 65 (court orders to segregate and destroy individual litigants’ records “could ultimately have a degrading effect on the utility of the program”); Shea Deck ¶ 65 (removing plaintiffs’ phone numbers “could undermine the results of any authorized query of a phone number that based on RAS is associated with one of the identified foreign terrorist organizations by eliminating, or cutting off potential call chains”). Put simply, the Government wants it both ways. Virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive meta-data database that serves as a potentially valuable tool in combating terrorism — in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT & T and Sprint, the second and third-largest carriers. See Grading the top U.S. carriers in the third quarter of 2013, FierceWireless.com (Nov. 18, 2013); Marguerite Reardon, Competitive wireless carriers take on AT & T and Verizon, CNET.com (Sept. 10, 2012). Yet in" }, { "docid": "2982323", "title": "", "text": "Earls, 536 U.S. at 834, 122 S.Ct. 2559. The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.” Govt.’s Opp’n at 51 — an interest that everyone, including this Court, agrees is “of the highest order of magnitude,” In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev.2008); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” (internal quotation marks omitted)). A closer examination of the record, however, reveals that the Govern- ment’s interest is a bit more nuanced — it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. Indeed, the affidavits in support of the Government’s brief repeatedly emphasize this interest in speed. For example, according to SID Director Shea, the primary advantage of the bulk metadata collection is that “it enables the Government to quickly analyze past connections and chains of communication,” and “increases the NSA’s ability to rapidly detect persons affiliated with the identified foreign terrorist organizations.” Shea Decl. ¶ 46 (emphases added); see also id. ¶ 59 (“Any other means that might be used to attempt to conduct similar analyses would require multiple, time-consuming steps that would frustrate needed rapid analysis in emergent situations, and could fail to capture some data available through bulk metadata analysis.” (emphases added)). FBI Acting Assistant Director of the Counterterrorism Division Robert J. Holley echoes Director Shea’s emphasis on speed: “It is imperative that the United States Government have the capability to rapidly identify any terrorist threat inside the United States.” Holley Deck ¶ 4 (emphasis added); see also id. ¶¶ 28-29 (”[T]he agility of querying the metadata collected by NSA under this program allows for more immediate contact chaining, which is significant in time-sensitive situations.... The delay inherent in issuing new national security letters would necessarily mean losing valuable time.... [Aggregating the" }, { "docid": "2982298", "title": "", "text": "unusual occurrences or instances of being “messed with” have anything to do with the question of whether the NSA has ever queried or analyzed their telephony metadata, so they do not confer standing on plaintiffs. The Government, however, describes the advantages of bulk collection in such a way as to convince me that plaintiffs’ metadata — indeed everyone’s metadata — is analyzed, manually or automatically, whenever the Government runs a query using as the “seed” a phone number or identifier associated with a phone for which the NSA has not collected metadata (e.g., phones operating through foreign phone companies). According to the declaration submitted by NSA Director of Signals Intelligence Directorate (“SID”) Teresa H. Shea, the data collected as part of the Bulk Telephony Metadata Program — had it been in place at that time — would have allowed the NSA to determine that a September 11 hijacker living in the United States had contacted a known al Qaeda safe house in Yemen. Shea Decl. ¶ 11. Presumably, the NSA is not collecting metadata from whatever Yemeni telephone company was servicing that safehouse, which means that the metadata program remedies the investigative problem in Director Shea’s example only if the metadata can be queried to determine which callers in the United States had ever contacted or been contacted by the target Yemeni safe-house number. See also Shea Decl. ¶ 44 (the metadata collection allows NSA analysts to, among other things, “detect foreign identifiers associated with a foreign terrorist organization calling into the U.S. and discover which domestic identifiers are in contact with the foreign identifiers.”). When the NSA runs such a query, its system must necessarily analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number. Moreover, unlike a DNA or fingerprint database — which contains only a single “snapshot” record of each person therein — the NSA’s database is updated every single day with new information about each phone number. Compare Johnson v. Quander," }, { "docid": "2982327", "title": "", "text": "investigations in cases involving imminent threats of terrorism. See Chandler, 520 U.S. at 318-19, 117 S.Ct. 1295 (“Notably lacking in respondents’ presentation is any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”). Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment. I realize, of course, that such a holding might appear to conflict with other trial courts, see, e.g., United States v. Moalin, Crim. No. 10-4246, 2013 WL 6079518, at *5-8 (S.D.Cal. Nov. 18, 2013) (holding that bulk telephony metadata collection does not violate Fourth Amendment); United States v. Graham, 846 F.Supp.2d 384, 390-405 (D.Md.2012) (holding that defendants had no reasonable expectation of privacy in historical cell-site location information); United States v. Gordon, Crim. No. 09-153-02, 2012 WL 8499876, at *1-2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that courts have applied in other contexts, see, e.g., Smith, 442 U.S. at 741-46, 99 S.Ct. 2577, Miller, 425 U.S. at 443, 96 S.Ct. 1619. Nevertheless, in reaching this decision, I find comfort in the statement in the Supreme Court’s recent majority opinion in Jones that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” 132 S.Ct. at 950 (2012) (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038). Indeed, as the Supreme Court noted more than a decade before Smith, “[t]he basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (emphasis added); see also Quon, 130 S.Ct. at 2627 (“The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function.” (internal quotation" }, { "docid": "2982377", "title": "", "text": "this Nation's traditions, [who] erroneously assume! 1 that police were continuously monitoring” telephony metadata. Smith, 442 U.S. at 740 n.5, 99 S.Ct. 2577. Accordingly, their “subjective expectations obviously could play no meaningful role in ascertaining ... the scope of Fourth Amendment protection,” and \"a normative inquiry would be proper.” Id. . Suspicionless searches and seizures have also been allowed in other contexts not analyzed under the \"special needs” framework, including administrative inspections of \"closely regulated” businesses, see New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), searches of fire-damaged buildings for the purpose of determining the cause of the fire, see Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and highway checkpoints set up to catch intoxicated motorists and illegal entrants into the United States, see Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). . These privacy interests are not \"mitigated ... by the statutorily mandated restrictions on access to and dissemination of the metadata that are written into the FISC's orders.” Govt.’s Opp’n at 51-52. First, there are no minimization procedures applicable at the collection stage; the Government acknowledges that FISC orders require the recipients to turn over all of their metadata without limit. See Oct. 11, 2013 Primary order at 3-4. Further, the most recent order of the FISC states that any trained NSA personnel can access the metadata, with \"[tjechnical personnel” authorized to run queries even using non-RAS-approved selection terms for purposes of \"perform[ing] those processes needed to make [the metadata] usable for intelligence analysis.” Id. at 5. The “[r]esults of any intelligence analysis queries,” meanwhile, \"may be shared, prior to minimization, for intelligence analysis purposes among [trained] NSA analysts.” Id. at 12-13 (emphasis added); see also Shea Deck ¶¶ 30, 32 (minimization procedures \"guard against inappropriate or unauthorized dissemination of information relating to U.S. persons,” and \"results of authorized queries of the metadata may be shared, without minimization, among trained NSA personnel for" }, { "docid": "2982378", "title": "", "text": "by the statutorily mandated restrictions on access to and dissemination of the metadata that are written into the FISC's orders.” Govt.’s Opp’n at 51-52. First, there are no minimization procedures applicable at the collection stage; the Government acknowledges that FISC orders require the recipients to turn over all of their metadata without limit. See Oct. 11, 2013 Primary order at 3-4. Further, the most recent order of the FISC states that any trained NSA personnel can access the metadata, with \"[tjechnical personnel” authorized to run queries even using non-RAS-approved selection terms for purposes of \"perform[ing] those processes needed to make [the metadata] usable for intelligence analysis.” Id. at 5. The “[r]esults of any intelligence analysis queries,” meanwhile, \"may be shared, prior to minimization, for intelligence analysis purposes among [trained] NSA analysts.” Id. at 12-13 (emphasis added); see also Shea Deck ¶¶ 30, 32 (minimization procedures \"guard against inappropriate or unauthorized dissemination of information relating to U.S. persons,” and \"results of authorized queries of the metadata may be shared, without minimization, among trained NSA personnel for analysis purposes” (emphases added)). These procedures in no way mitigate the privacy intrusion that occurs when the NSA collects, queries, and analyzes metadata. ’And that’s even assuming the Government complies with all of its procedures' — • an assumption that is not supported by the NSA’s spotty track record to date. See supra notes 23-25 and accompanying text. . It bears noting that the Government’s interest in stopping and prosecuting terrorism has not led courts to abandon familiar doctrines that apply in criminal cases generally. See United States v. Ressam, 679 F.3d 1069, 1106 (9th Cir.2012) (Schroeder, J., dissenting) (collecting cases in which \"courts have treated other issues in terrorism cases in ways that do not differ appreciably from more broadly applicable doctrines”). In fact, the Supreme Court once expressed in dicta that an otherwise impermissible roadblock “would almost certainly” be allowed \"to thwart an imminent terrorist attack.” City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (emphases added). The Supreme Court has never suggested that all Fourth" }, { "docid": "2982270", "title": "", "text": "single database creates “an historical repository that permits retrospective analysis,” Govt.’s Opp’n at 12, enabling NSA analysts to draw connections, across telecommunications service providers, between numbers reasonably suspected to be associated with terrorist activity and with other, unknown numbers. Holley Decl. ¶¶ 5, 8; Shea Decl. ¶¶ 46, 60. The FISC orders governing the Bulk Telephony Metadata Program specifically provide that the metadata records may be accessed only for counterterrorism purposes (and technical database maintenance). Holley Decl. ¶ 8; Shea Decl. ¶ 30. Specifically, NSA intelligence analysts, without seeking the approval of a judicial officer, may access the records to obtain foreign intelligence information only through “queries” of the records performed using “identifiers,” such as telephone numbers, associated with terrorist activity. An “identifier” (i.e., selection term, or search term) used to start a query of the database is called a “seed,” and “seeds” must be approved by one of twenty-two designated officials in the NSA’s Homeland Security Analysis Center or other parts of the NSA’s Signals Intelligence Directorate. Shea Decl. ¶¶ 19, 31. Such approval may be given only upon a determination by one of those designated officials that there exist facts giving rise to a “reasonable, articulable suspicion” (“RAS”) that the selection term to be queried is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. Holley Decl. ¶¶ 15-16. In 2012, for example, fewer than 300 unique identifiers met this RAS standard and were used as “seeds” to query the metadata, but “the number of unique identifiers has varied over the years.” Shea Decl. ¶ 24. When an NSA intelligence analyst runs a query using a “seed,” the minimization procedures provide that query results are limited to records of communications within three “hops” from the seed. Id. ¶22. The query results thus will include only identifiers and their associated metadata having a direct contact with the seed (the first “hop”), identifiers and associated metadata having a direct contact with first “hop” identifiers (the second “hop”), and identifiers and associated metadata having a direct contact with second “hop” identifiers (the third" }, { "docid": "12652724", "title": "", "text": "essentially, the contacts of contacts of contacts of the original “seed.” Id. The government asserts that it does not conduct any general “browsing” of the data. Id. at 263-65. Section 215 requires that the Attorney General adopt “specific minimization procedures governing the retention and dissemination by the [government] of [information] received ... in response to an order under this subchapter.” 50 U.S.C. § 1861(g)(1). The procedures that have been adopted include the requirement that the NSA store the metadata within secure networks; that the metadata not be accessed for any purpose other than what is allowed under the FISC order; that the results of queries not be disseminated outside the NSA except in accordance with the minimization and dissemination requirements of NSA procedures; and that the relevant personnel receive comprehensive training on the minimization procedures and technical controls. Joint App’x 267-69. And as the government points out, the program is subject to oversight by the Department of Justice, the FISC, and Congress. Id. at 269. The minimization procedures require audits and reviews of the program by the NSA’s legal and oversight offices, the Office of the Inspector General, attorneys from the Department of Justice’s National Security Division, and the Office of the Director of National Intelligence. Id. The FISC orders that created the program require the NSA to provide periodic reports to the FISC. Id. at. 141. In the event of failures of compliance, reports must be made to the FISC, and, where those failures are significant, to the Intelligence and Judiciary Committees of both houses of Congress. Id. at 269. FISA itself also imposes a system of Congressional oversight, requiring periodic reports on the program from the Attorney General to the House and Senate Intelligence and Judiciary Committees. See 50 U.S.C. §§ 1862,1871. Since the existence of the telephone metadata program became public, a number of developments have altered the landscape, at least to some degree, within which we analyze the program. Among the most notable are modifications to the telephone metadata program announced by President Obama in January 2014. President Barack Obama, Remarks by the President on Review" }, { "docid": "2982351", "title": "", "text": "process queries the collected BR metadata (in a 'collection store') with RAS-approved selection terms and returns the hop-limited results from those queries to a 'corporate store.’ The corporate store may then be searched by appropriately and adequately trained personnel for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms.” Oct. 11, 2013 Primary Order at 11 (footnote omitted). This \"automated query process” was first approved by the FISC in a November 8, 2012 order. Jd.atlln.il. . Judge Walton noted that, \"since the earliest days of the FISC-authorized collection of . call-detail records by the NSA, the NSA has on- a daily basis, accessed the BR metadata for purposes of comparing thousands of non-RAS-approved telephone identifiers on its alert list against the BR metadata in order to identify any matches. Such access was prohibited by the governing minimization procedures under each of the relevant Court orders.” Mar. 2, 2009 Order, 2009 WL 9150913, at *2. He went on to conclude: “In summary, since January 15, 2009, it has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government-devised and Court-mandated oversight regime. The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.” Id. at *5. . Available at http://www.dni.gov/index.php/ newsroom/press-releases/191-press-releases-2013/915-dni-declassifies-intelligence-community-documents-regarding-collection-under-section-702-of-the-foreign-intelligence-surveillance-act-fisa. Whatever the second “substantial misrepresentation” was, the Government appears to have redacted it from the footnote in that opinion. . See Office of the Dir. of Nat'l Intelligence, DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013), available at http:// www.dni.gov/index.php/newsroom/pressreleases/19 l-press-releases-2013/915-dnideclassifies-intelligence-community-documents-regarding-collection-under-section-702-of-the-foreign-intelligence-surveillance-act-fisa; Office of the Dir. of Nat'l" }, { "docid": "2982296", "title": "", "text": "orders to segregate and destroy individual litigants’ records “could ultimately have a degrading effect on the utility of the program”); Shea Deck ¶ 65 (removing plaintiffs’ phone numbers “could undermine the results of any authorized query of a phone number that based on RAS is associated with one of the identified foreign terrorist organizations by eliminating, or cutting off potential call chains”). Put simply, the Government wants it both ways. Virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive meta-data database that serves as a potentially valuable tool in combating terrorism — in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT & T and Sprint, the second and third-largest carriers. See Grading the top U.S. carriers in the third quarter of 2013, FierceWireless.com (Nov. 18, 2013); Marguerite Reardon, Competitive wireless carriers take on AT & T and Verizon, CNET.com (Sept. 10, 2012). Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of meta-data so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence! Likewise, I find that plaintiffs also have standing to challenge the NSA’s querying procedures, though not for the reasons they pressed at the preliminary injunction hearing. At oral argument, I specifically asked Mr. Klayman whether plaintiffs had any “basis to believe that the NSA has done any queries” involving their phone numbers. Transcript of Nov. 18, 2013 Preliminary Injunction Hearing at 22, Klayman I & Klayman II (“P.I. Hr’g Tr.”) [Dkt. # 41]. Mr. Klayman responded: “I think they are messing with me.” Id. He then went on to explain that he and his clients had received inexplicable text messages and emails, not to mention a disk containing a spyware program. Id.; see also Strange Aff. ¶¶ 12-17. Unfortunately for plaintiffs, none of these" }, { "docid": "2982275", "title": "", "text": "to collect telephony records (typically every ninety days). Shea Decl. ¶ 14. The Government has nonetheless acknowledged, as it must, that failures to comply with the minimization procedures set forth in the orders have occurred. For instance, in January 2009, the Government reported to the FISC that the NSA had improperly used an “alert list” of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard. Id. ¶ 37; Order, In re Production of Tangible Things from [Redacted], No. BR 08-13, 2009 WL 9150913, at *2 (FISC Mar. 2, 2009) (“Mar. 2, 2009 Order”). After reviewing the Government’s reports on its noncompliance, Judge Reggie Walton of the FISC concluded that the NSA had engaged in “systematic noncompliance” with FISC-ordered minimization procedures over the preceding three years, since the inception of the Bulk Telephony Metadata Program, and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. Mar. 2, 2009 Order, 2009 WL 9150913, at *2-5. As a consequence, Judge Walton concluded that he had no confidence that the Government was doing its utmost to comply with the court’s orders, and ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to Section 1861 orders. Id. at *9; Shea Decl. ¶¶ 38-39. This approval procedure remained in place from March 2009 to September 2009. Shea Decl. ¶¶ 38-39. Notwithstanding this six-month “sanction” imposed by Judge Walton, the Government apparently has had further compliance problems relating to its collection programs in subsequent years. In October 2011, the Presiding Judge of the FISC, Judge John Bates, found that the Government had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C. § 1881a (i.e., a different collection program than the Bulk Telephony Metadata Program at issue here). Referencing the 2009 compliance issue regarding the NSA’s use of unauthorized identifiers to query the meta-data in the Bulk Telephony Metadata Program, Judge Bates wrote: “the Court is troubled that the government’s revelations" }, { "docid": "2982325", "title": "", "text": "NSA telephony metadata from different telecommunications providers enhances and expedites the ability to identify chains of communications across multiple providers.” (emphases added)). Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk meta-data collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. See Holley Deck ¶¶ 24-26. In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” Id. ¶ 24. Assistant Director Holley does not say that the metadata revealed any new information— much less time-sensitive information- — - that had not already come to light in the investigation up to that point. Id. In the second example, it appears that the meta-data analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.” Id. ¶ 25. And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator ... and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.” Id. ¶ 26. Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI’s other investigative methods and techniques.” Id. ¶ 23 (emphasis added). Given the limited record before me at this point in the litigation- — ■ most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive" }, { "docid": "2982380", "title": "", "text": "Amendment protections must defer to any Government action that purportedly serves national security or counterterrorism interests. . Such candor is as refreshing as it is rare. . The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA's surveillance programs have prevented fifty-four terrorist attacks, no proof of that has been put before me. See also Justin Elliott & Theodoric Meyer, Claim on ‘Attacks Thwarted’ by NSA Spreads Despite Lack of Evidence, ProPublica.org (Oct. 23, 2013), http://www.propublica.org/article/ claim-on-attacks-thwarted-by-nsa-spreadsdespite-lack-of-evidence (“ 'We’ve heard over and over again the assertion that 54 terrorist plots were thwarted’ by the [NSA’s] programs.... 'That’s plainly wrong.... These weren’t all plots and they weren't all thwarted. The American people are getting left with the inaccurate impression of the effectiveness of the NSA programs.’ ” (quoting Sen. Patrick Leahy)); Ellen Nakashima, NSA’s need to keep database questioned, Wash. Post, Aug. 9, 2013, at A01 (\"[Senator Ron] Wyden noted that [two suspects arrested after an investigation that involved use of the NSA’s metadata database] were arrested ‘months or years after they were first identified' by mining the phone logs.”). . The Government points out that it could obtain plaintiffs’ metadata through other means that potentially raise fewer Fourth Amendment concerns. See Govt.'s Opp’n at 6 (\"The records must be of a type obtainable by either a grand jury subpoena, or an order issued by a U.S. court directing the production of records or tangible things.” (citing 50 U.S.C. § 1861(c)(2)(D)); Holley Decl. ¶ 14 (\"In theory, the FBI could seek a new set of orders on a daily basis for the records created within the preceding 24 hours.”). Even if true, \"[t]he fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.” Kyllo, 533 U.S. at 35 n.2, 121 S.Ct. 2038. . James Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June 16, 1788), in The History of the Virginia Federal Convention" }, { "docid": "2982326", "title": "", "text": "second example, it appears that the meta-data analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.” Id. ¶ 25. And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator ... and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.” Id. ¶ 26. Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI’s other investigative methods and techniques.” Id. ¶ 23 (emphasis added). Given the limited record before me at this point in the litigation- — ■ most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism. See Chandler, 520 U.S. at 318-19, 117 S.Ct. 1295 (“Notably lacking in respondents’ presentation is any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”). Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment. I realize, of course, that such a holding might appear to conflict with other trial courts, see, e.g., United States v. Moalin, Crim. No. 10-4246, 2013 WL 6079518, at *5-8 (S.D.Cal. Nov. 18, 2013) (holding that bulk telephony metadata collection does not violate Fourth Amendment); United States v. Graham, 846 F.Supp.2d 384, 390-405 (D.Md.2012) (holding that defendants had no reasonable expectation of privacy in historical cell-site location information); United States v. Gordon, Crim. No. 09-153-02, 2012 WL 8499876, at *1-2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that courts have applied in other contexts, see, e.g., Smith," }, { "docid": "2982322", "title": "", "text": "The doctrine has also been applied in cases involving efforts to prevent acts of terrorism in crowded transportation centers. See, e.g., Cassidy v. Chertoff, 471 F.3d 67 (2d Cir.2006) (upholding searches of carry-on bags and automobiles that passengers bring on ferries); MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006) (upholding searches of bags in New York City subway system). To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet. For reasons I have already discussed at length, I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation. Whether the program violates the Fourth Amendment will therefore turn on “the nature and immediacy of the government’s concerns and the efficacy of the [search] in meeting them.” Earls, 536 U.S. at 834, 122 S.Ct. 2559. The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.” Govt.’s Opp’n at 51 — an interest that everyone, including this Court, agrees is “of the highest order of magnitude,” In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev.2008); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” (internal quotation marks omitted)). A closer examination of the record, however, reveals that the Govern- ment’s interest is a bit more nuanced — it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. Indeed, the affidavits in support of the Government’s brief repeatedly emphasize this interest in speed. For example, according to SID Director Shea, the primary advantage of the bulk" } ]

[ { "docid": "15793118", "title": "", "text": "enrolled in college. In December 1983, appellee returned to Florida and unsuccessfully applied for admission to several universities in Miami. After commencing the instant action on March 21, 1984, appellee worked in Miami until July 1984, when she returned to Puer-to Rico to finish school. She planned to return to Miami on completion of her schooling in the summer of 1985. Throughout this period, appellee kept her personal belongings in Miami, maintained a bank account there and not in Puerto Rico, worked only in Miami, and intended to make Florida her home. As stated above, the district court entered an order on August 20, 1985 denying appellant’s motion to dismiss for lack of subject matter jurisdiction. The court held that appellee was a citizen of Florida at the time she commenced the action and, appellant being a citizen of Puerto Rico, the court had jurisdiction based on diversity of citizenship. On September 6, 1985, appellant filed various post-trial motions, including one to dismiss for lack of jurisdiction. The court denied this motion by an order entered March 27, 1986. There is diversity of citizenship if the plaintiff and the defendant are “citizens” of different states. 28 U.S.C. § 1332(a)(1). For the purposes of § 1332(a)(1), state citizenship is the equivalent of “domicile.” Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 701 (1st Cir.1979). “Domicile” is “the technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.” Williamson v. Osenton, 232 U.S. 619, 625 (1914) (Holmes, J.). To effect a change in domicile, two things are required: “ ‘First, residence in a new domicil; and second, the intention to remain there.’ ” Hawes, supra, 598 F.2d at 701 (quoting Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383 (1904)). It is well settled that “[d]omicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship.” Hawes, supra, 598 F.2d at 701. Accord, Smith v. Sperling, 354 U.S." } ]

[ { "docid": "23345302", "title": "", "text": "to dismiss. After a non-evidentiary hearing, held on March 28, 1991, the court denied Montle’s motion. The court then granted Bank One’s motion for summary judgment on its claims and Montle’s counterclaims, explaining its ruling in a Memorandum and Order dated May 6, 1991. 764 F.Supp. 687. Montle appeals. We remand for further proceedings on the question of diversity of citizenship between the parties. I. Federal jurisdiction based on diversity of citizenship requires that the matter in controversy be between citizens of different states. 28 U.S.C. § 1332(a)(1). For purposes of diversity, a person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’ ” Rodriguez-Diaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Domicile is determined as of the time the suit is filed, and once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedon Martinez, 806 F.2d at 1132; Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). II. In contesting Bank One’s assertion of diversity jurisdiction, Montle stated that before the date the complaint was filed, July 30, 1990, he had changed his domicile from Massachusetts to Texas — the same state of which Bank One was a citizen. Generally, once challenged, “the party invoking subject matter jurisdiction [here Bank One] has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” James W. Moore et al., Moore’s Federal Practice ¶ 0.71[5.—1] (2d ed. 1985); see also Lundquist, 946 F.2d at 10 (plaintiff must support allegation of jurisdiction by “competent proof”); O’Toole v. Arlington Trust Co., 681 F.2d 94," }, { "docid": "5075113", "title": "", "text": "to enlistment is, however, rebuttable. See Ellis v. Southeast Construction (supra); Beers v. North American Van Lines (supra). Plaintiff is authorized to prove that “he has formed the intention to make a home in that state.” 13B Charles A. Wright, Arthur R. Miller and Edward A. Cooper Federal Practice and Procedure § 3617, at 567 (1984) (hereinafter ‘Wright, Miller & Cooper”). Proof of the new domicile acquisition however “requires clear and unequivocal evidence” 13B Wright, Miller & Cooper § 3617 at 567; Mizell v. Eli Lilly & Co., 526 F.Supp. 589 (D.C.S.C.1981); Vitro v. Town of Carmel, 433 F.Supp. 1110 (S.C.N.Y.1977); Deckers v. Kenneth W. Rose Inc., 592 F.Supp. 25 (M.D.Fla.1984). When domicile is questioned the courts examine various factors, “voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, membership in unions, fraternal organizations, churches, clubs and other associations, place of employment and business, drivers licence and auto registration, payment of taxes as well as others. No single factor is conclusive.” 13B Wright, Miller & Cooper § 3612 at 530-531; Bank One, Texas, N.A. v. Montle, 964 F.2d 48 (1st Cir.1992); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8 (1st Cir.1991). The crucial time for diversity purposes is the moment of the filing. Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 15 S.Ct. 751, 39 L.Ed. 889 (1895); Bank One Texas N.A v. Montle, 964 F.2d 48 (1st Cir.1992). Once jurisdiction has been challenged, the party involving diversity has the burden of establishing it. Bank One, 964 F.2d at 50. Further “[T]here is ... a presumption in favor of continuing domicile.” (Id.) II. Plaintiff contends that having completed D.D. 2058 (Department of Defense form 2058, State of Legal Residence Certificate on August 18,1994) prior to the filing of the complaint on December 28, 1994 is “unmistakable” evidence of his new domicile. (Opposition by Plaintiff Docket No. 47). However, an examination of the document reveals that its purpose is “for determining the correct state of legal residence for purposes of withholding income taxes from the military.” The form further forewarns the" }, { "docid": "532108", "title": "", "text": "that period and who made purchases at TJX. The McMorris class attempts to secure remand by arguing that residence and citizenship are to be used interchangeably for the purpose of ascertaining diversity jurisdiction under CAFA. Pls.’ Mem. in Supp. of Mot. to Remand [Doc. No. 30] (“Pls.Mem.”) at 3. Citizenship, however is equated not with residence, but with “domicile,” i.e., the place where an individual “has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” See Valentin v. Hospital Bella Vista, 254 F.3d 358, 366 (1st Cir.2001) (internal quotation omitted). As the First Circuit emphasized in Valentin v. Hospital Bella Vista, and upon which the McMorris class themselves rely, see Pis. Mem. at 5, “[jjurisdictionally speaking, residency and citizenship are not interchangeable.” Valentin, 254 F.3d at 361 n. 1. Federal courts that have focused on the issue consistently have rejected the proposition that mere residence establishes a party’s citizenship for the purpose of diversity. See Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 53 (1st Cir.1992) (“We add that citizenship or domicile, not residence, is the basis of subject matter jurisdiction.”); Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991) (“[Plaintiff] correctly notes that the relevant standard is ‘citizenship,’ i.e., ‘domicile,’ not mere residence ....”); ConnectU LLC v. Zuckerberg, 482 F.Supp.2d 3, 9 & n. 5 (D.Mass.2007) (Woodlock, J.) (stating that an allegation that “[u]pon information and belief, Defendant Mark Zuckerberg is an individual with a place of residence in the State of New York” was “an insufficient allegation for jurisdictional purposes in any event since the pertinent inquiry is the citizenship or domicile, not the residency, of a party.”); see also Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 798 (5th Cir.2007) (rejecting plaintiffs’ contention that residency can serve as a proxy for domicile to establish the citizenship of a putative class under CAFA); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.2001); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.1972) (“Where one lives is prima facie evidence of" }, { "docid": "217524", "title": "", "text": "Understandably, because juries tend to render high verdicts, malpractice plaintiffs might prefer to have their actions adjudicated in federal forums. Diversity jurisdiction requires complete diversity of citizenship between all plaintiffs and all defendants. 28 U.S.C. § 1332(a)(1); CT. Carden v. Arkoma Assocs., 494 U.S. 185, 187, 110 S.Ct. 1015, 1017, 108 L.Ed.2d 157 (1990); see also De Mauro v. De Mauro, 115 F.3d 94, 95, n. 1 (1st Cir.1997) (when the plaintiffs and the defendants were New Hampshire residents, the action must be dismissed for lack of complete diversity); Bank One, Texas, N.A. v. Month, 964 F.2d 48, 49 (1st Cir.1992). For purposes of diversity jurisdiction, citizenship is determined as of the date that a plaintiff files a lawsuit. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1114 n. 1, 1 L.Ed.2d 1205, 1209 n. 1 (1957); Bank One, Texas, N.A., 964 F.2d at 49. Therefore, the issue before this Court is whether Plaintiff was domiciled in New York or in Puerto Rico on February 9, 2000, the date on which she filed her Complaint. Domicile generally requires two elements: 1) presence in the alleged state of domicile, and 2) the intent to remain there. Bank One, Texas, N.A., 964 F.2d at 50; Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 (1984). Long settled case law holds that state citizenship is equivalent to domicile for purposes of determining diversity jurisdiction. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8, 10 (1st Cir.1991). In addressing the issue of domicile, this Circuit has held that “[t]he relevant standard is ‘citizenship,’ i.e. ‘domicile,’ not mere residence; a party may reside in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist, 946 F.2d at 10. The First Circuit has also held that “a person’s domicile ‘is the place where he has his true, fixed home and principal establishment, and to which, whenever" }, { "docid": "217530", "title": "", "text": "(citing Lundquist 946 F.2d at 12). It is undisputed that Plaintiff was not registered to vote in New York on the date that she filed her Complaint. After reviewing all the evidence before it, the Court cannot say that on February 9, 2000, Plaintiff was domiciled in New York. Therefore, Plaintiff has failed to carry her burden of establishing that she had acquired a domicile in New York as of the date that she filed her Complaint. Bank One, Texas, N.A., 964 F.2d at 50; Alicea-Rivera, 12 F.Supp.2d at 245; White, 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Rather, the evidence shows that Plaintiff was residing in New York at the home of her cousin, but was domiciled in Puerto Rico. See Bank One. Texas, N.A., 964 F.2d at 50; Valedon Martinez, 806 F.2d at 1132; Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 at p. 544. Residence and domicile are not synonymous for purposes of diversity jurisdiction. See Lundquist, 946 F.2d at 10. Accordingly, the Court finds that at the time of commencing the suit, Plaintiff was a domiciliary of Puerto Rico. The Court need go no further. V. CONCLUSION In view of the foregoing discussion, this Court hereby DISMISSES the Complaint for lack of diversity jurisdiction. IT IS SO ORDERED. . These two parties, Dr. Ramón Sotomayor and Dr. Miguel Palacios, were subsequently dismissed from the action pursuant to Plaintiff's Motion for Voluntary Dismissal and this Court's Judgment (docket No. 54). . The IED Defendants filed a summary judgment motion contesting diversity jurisdiction on August 24, 2000 which co-Defendant HIMA joined on September 6, 2000. . The IED Defendants were warned on no less than two occasions that if Dr. Brandt’s expert witness report was not filed by September 1, 2000, his testimony would not be allowed. See ISC Order § IV (docket No. 25); Order (docket No. 48). To be sure, all attorneys practicing before this Court are expected to be well versed in pre-trial practice. They are encouraged to read Judicial Economy and Efficiency Through the Initial Scheduling Conference: The Method, 35" }, { "docid": "8361850", "title": "", "text": "purposes of diversity jurisdiction. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991). Residence, however, is not the equivalent of either citizenship or domicile. America’s Best Inns v. Best Inns of Abilene, 980 F.2d 1072, 1074 (7th Cir.1992). Generally, a person’s domicile is the place of “his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom-” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). This general definition of domicile has varying applications, however, according to the particular individual to whom it is applied. Adults, for example, are deemed to establish domicile “by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989). However, the domicile of minors is usually determined by reference to another person, since minors are considered incapable of forming the requisite intent to establish independent domicile. Safeco Ins. Co. v. Mirczak, 662 F.Supp. 1155, 1157 (D.Nev.1987). Students attending college are also treated differently by the courts for purposes of diversity. “Since out-of-state students are often located in the state only for the duration of and for the purpose of their studies, they are generally presumed to lack the intention to remain in the state indefinitely.” Murphy v. Newport Waterfront Landing, Inc., 806 F.Supp. 322, 324 (D.R.I.1992) (internal quotations marks omitted); 13B Chaeles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 2d § 3619 (1984 & Supp. 1995). With respect to the cases dealing with students attending school out-of-state, the determinative factor is “whether the parents continued in their parental roles to support and control the minor child.” Mulholland v. AAA Food Svc., Inc., No. 89-3492, 1990 WL 223012, at *3, 1990 U.S.App. LEXIS 22524, at *1 (7th Cir. Dec. 13, 1990). III. DISCUSSION In the spirit of the rules formulated by the courts for determining domicile," }, { "docid": "22969423", "title": "", "text": "a place, a person must intend to make that place his home for the time at least.” Restatement 2d, Conflict of Laws § 18 (1971). There is no minimum period of residency required. A citizen of the United States can instantly transfer his citizenship from one state to another. Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 32 L.Ed. 690 (1889). A person may have only one domicile at a time and, until a new one is acquired, the established one continues, Restatement 2d, Conflict of Laws § 19 (1971), and, once acquired, the presumption is that it continues until changed. Mitchell v. United States, 21 Wall. 350, 88 U.S. 350, 353, 22 L.Ed. 584 (1874). It has long been the rule that motive for the change in residence is irrelevant in determining domicile. Williamson v. Osenton, supra, 232 U.S. at 625, 34 S.Ct. 442, Morris v. Gilmer, supra; Peterson v. All City Insurance Co., 472 F.2d 71, 74 (2d Cir. 1972). There is an overlay of federal jurisdictional requirements that must also be considered. For purposes of diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile. Williamson v. Osenton, supra, 232 U.S. at 624, 34 S.Ct. 442. Domicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957). The rule is that statutes conferring diversity jurisdiction are to be strictly construed. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Indianapolis v. Chase National Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 86 L.Ed. 47 (1941); Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir. 1962). This means that, if a plaintiff’s claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, supra, Janzen v. Goos, supra. The standard of review, particularly in a case like this where there was" }, { "docid": "217527", "title": "", "text": "by asserting change in domicile that has the burden of proving such change by clear and convincing evidence.”); see also White v. All America Cable and Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). The factors relevant to determining a person’s domicile include 1) the person’s place of voting; 2) the location of the person’s real property; 3) the state issuing the person’s drivers license; 4) the state where the person’s bank accounts are maintained; 5) the state where the person has a club or church membership; and 6) the state where the person is employed. Bank One, Texas, N.A., 964 F.2d at 50. In this case, Plaintiff alleges that she was domiciled in New York on February 9, 2000, the date in which she filed her Complaint. Defendants, who are all domiciliaries of Puerto Rico, challenge this Court’s jurisdiction by asserting that Plaintiffs domicile on the date that the Complaint was filed was Puerto Rico. Plaintiff countered Defendants’ evidence with documents illustrating that she has been receiving medical treatment in New York; her sworn affidavit stating that she resides in New York; received medical treatment there and intends to remain there; a New York voter registration card showing that Plaintiff registered to vote on February 22, 2000; a New York State drivers license issued in May 2000, approximately three-months after she filed her complaint; and excerpts from her deposition transcript in which she states that she intends to remain in New York. However, remaining in a new residence in order to obtain medical care does not amount to a change in domicile for diversity of citizenship purposes. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 at p. 547. The Court further notes that a party’s bare declaration of domicile, which is self-serving in nature, is accorded little weight when in conflict with objective facts. Kressen v. National Ins. Co., 648 F.Supp. 1165, 1167 (D.Puerto Rico 1986) (Pieras J.) (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir.1985)). We now turn to the facts which are undisputed. Plaintiff does not own any" }, { "docid": "1897332", "title": "", "text": "in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991). The question of citizenship “is a mixed question of law and fact.” Id. Courts have identified many factors, none of which by itself is controlling, that are relevant to determine a party’s domicile. Objective indicia of intent to change domiciliary include: [t]he place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment. Lundquist, 946 F.2d at 11 (quoting 1 Moore’s Federal Practice ¶ 0.743.3 at 788 (2d ed.1991)). Statements of intent are accorded minimal weight measured against these objective factors. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir.1985). Plaintiff filed this complaint on February 6, 1997. For purposes of diversity jurisdiction, citizenship is determined as of the date of the initiation of the lawsuit. See, e.g., Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991); Media Duplication Servs., Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1236 (1st Cir.1991). Therefore, the only relevant factors here are those in existence at the time plaintiff filed this suit on February 6, 1997. Since Plaintiffs physical presence in Ohio is uncontested/ the only remaining issue to determine domiciliary is whether Plaintiff has present clear and convincing evidence of his intent to remain in Ohio indefinitely. We must look at objective indicia to determine intent. During the relevant period, Plaintiff had a checking bank account in Ohio, and had applied for a visa credit card listing Ohio as his permanent address. Plaintiff began studying full time in Ohio in September 1996. In 1996, Plaintiff registered to vote in Ohio, and voted in the 1996 Ohio general elections. In January 1997, Plaintiff obtained a permanent driver’s license and identification card from Ohio, and his university notified him that it had approved his request for Ohio residency for tuition" }, { "docid": "22252181", "title": "", "text": "As is the case in other areas of federal jurisdiction, the diverse citizenship among adverse parties must be present at the time the complaint is filed. Mullen v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154, 155 (1824); Slaughter v. Toye Bros. Yellow Cab Co., 5 Cir., 1966, 359 F.2d 954, 956. Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. Morgan’s Heirs v. Morgan, 15 U.S. (2 Wheat.) 290, 297, 4 L.Ed. 242, 244 (1817); Clarke v. Mathewson, 37 U.S. (12 Pet.) 164, 171, 9 L.Ed. 1041, 1044 (1838); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed. 2d 1205 (1957). The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction, see Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132 (1888); and if the diversity jurisdiction is properly challenged, that party also bears the burden of proof, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Welsh v. American Surety Co. of New York, 5 Cir., 1951, 186 F.2d 16, 17. To be a citizen of a State within the meaning of section 1332, a natural person must be both a citizen of the United States, see Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); U.S.Const. Amend. XIV, § 1, and a domiciliary of that State. See Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient. See Wolfe v. Hartford Life & Annuity Ins. Co., 148 U.S. 389, 13 S.Ct. 602, 37 L.Ed. 493 (1893); Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448. A person’s domicile is the place of “his true, fixed, permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom . ” Stine v. Moore, 5 Cir.," }, { "docid": "217525", "title": "", "text": "she filed her Complaint. Domicile generally requires two elements: 1) presence in the alleged state of domicile, and 2) the intent to remain there. Bank One, Texas, N.A., 964 F.2d at 50; Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 (1984). Long settled case law holds that state citizenship is equivalent to domicile for purposes of determining diversity jurisdiction. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8, 10 (1st Cir.1991). In addressing the issue of domicile, this Circuit has held that “[t]he relevant standard is ‘citizenship,’ i.e. ‘domicile,’ not mere residence; a party may reside in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist, 946 F.2d at 10. The First Circuit has also held that “a person’s domicile ‘is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning’.” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988) (citing 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §§ 3612, at 526 (1984)). The law presumes that once a domicile is acquired, it continues until a new domicile is established. Bank One, Texas, N.A 964 F.2d at 50 (citing Halves v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Thus, a plaintiff who claims to have changed his domicile carries a heavy burden to demonstrate that he has established a new domicile, in order for the previously established domicile to not control. Id.; White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Moreover, once diversity jurisdiction is challenged, a plaintiff asserting it must demonstrate the facts supporting diversity jurisdiction by a preponderance of the evidence. Bank One, Texas, N.A., 964 F.2d at 50; Alicia-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.Puerto Rico 1998) (“It is the party seeking to invoke the federal court’s jurisdiction" }, { "docid": "23345301", "title": "", "text": "LEVIN H. CAMPBELL, Senior Circuit Judge. On July 30, 1990, plaintiff-appellee, Bank One, Texas, N.A. (“Bank One”), brought an action in the United States District Court for the District of Massachusetts against defendant-appellant, Paul J. Montle, to recover the deficiency due under a note executed by Montle and upon which he defaulted. Bank One’s complaint alleged federal diversity jurisdiction on the basis of diversity of citizenship under 28 U.S.C. § 1332. While not specifically alleging “citizenship” the complaint stated that Bank One is a Texas financial lending institution with its principal place of business in Texas, and that defendant, Paul Montle, “is an individual residing at 147 Main Street, Hingham, Massachusetts 02043.” On December 10, 1990, Montle moved to dismiss for lack of subject matter jurisdiction on the grounds that diversity of citizenship was lacking. Montle alleged that as of July 30,1990, the date Bank One filed its complaint, he was a domiciliary of Texas, not Massachusetts. Montle filed a supporting affidavit with his motion and Bank One filed affidavits in opposition to Montle’s motion to dismiss. After a non-evidentiary hearing, held on March 28, 1991, the court denied Montle’s motion. The court then granted Bank One’s motion for summary judgment on its claims and Montle’s counterclaims, explaining its ruling in a Memorandum and Order dated May 6, 1991. 764 F.Supp. 687. Montle appeals. We remand for further proceedings on the question of diversity of citizenship between the parties. I. Federal jurisdiction based on diversity of citizenship requires that the matter in controversy be between citizens of different states. 28 U.S.C. § 1332(a)(1). For purposes of diversity, a person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’ ” Rodriguez-Diaz, 853 F.2d at" }, { "docid": "217523", "title": "", "text": "denials of the pleadings, but must affirmatively show, through the filing of supporting affidavits or otherwise, that there is a genuine issue of material fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), 477 U.S. at 248, 106 S.Ct. at 2510; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Goldman, 985 F.2d at 1116. IV. LEGAL ANALYSIS ■ Federal courts are courts of limited jurisdiction, and statutes which grant jurisdiction must be strictly construed. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942). This medical malpractice case involves no federal question jurisdiction. Therefore, it would have been an issue for a state court to decide but for the fact that Plaintiff invoked this Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Had this action been filed in state court, Plaintiff would not have been entitled to trial by jury, because, in this jurisdiction (Puerto Rico), a trial by jury is not available in civil cases. Understandably, because juries tend to render high verdicts, malpractice plaintiffs might prefer to have their actions adjudicated in federal forums. Diversity jurisdiction requires complete diversity of citizenship between all plaintiffs and all defendants. 28 U.S.C. § 1332(a)(1); CT. Carden v. Arkoma Assocs., 494 U.S. 185, 187, 110 S.Ct. 1015, 1017, 108 L.Ed.2d 157 (1990); see also De Mauro v. De Mauro, 115 F.3d 94, 95, n. 1 (1st Cir.1997) (when the plaintiffs and the defendants were New Hampshire residents, the action must be dismissed for lack of complete diversity); Bank One, Texas, N.A. v. Month, 964 F.2d 48, 49 (1st Cir.1992). For purposes of diversity jurisdiction, citizenship is determined as of the date that a plaintiff files a lawsuit. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1114 n. 1, 1 L.Ed.2d 1205, 1209 n. 1 (1957); Bank One, Texas, N.A., 964 F.2d at 49. Therefore, the issue before this Court is whether Plaintiff was domiciled in New York or in Puerto Rico on February 9, 2000, the date on which" }, { "docid": "217529", "title": "", "text": "property in New York. However, she owns a home in Puerto Rico as well as a child care business there. She does not work in New York and she could not vote in New York on February 9, 2000, the operative date for determining diversity jurisdiction. She does not hold any bank accounts in New York even though she has received medical treatment there and does have two New York interim driver’s licenses. Nonetheless, on the date that Plaintiff filed the Complaint in the instant action, she had only been in New York for a total of twelve (12) days. In contrast, Plaintiff has been domiciled in Puerto Rico as of 1977, when she returned to the island with her family. Her husband and at least one daughter currently live there. As a general rule, no single factor is wholly determinative of diversity. Bank One, Texas, N.A., 964 F.2d at 50. However, the First Circuit has stated that the state where a person is registered to vote is a “weighty” factor in determining domicile. Id. (citing Lundquist 946 F.2d at 12). It is undisputed that Plaintiff was not registered to vote in New York on the date that she filed her Complaint. After reviewing all the evidence before it, the Court cannot say that on February 9, 2000, Plaintiff was domiciled in New York. Therefore, Plaintiff has failed to carry her burden of establishing that she had acquired a domicile in New York as of the date that she filed her Complaint. Bank One, Texas, N.A., 964 F.2d at 50; Alicea-Rivera, 12 F.Supp.2d at 245; White, 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Rather, the evidence shows that Plaintiff was residing in New York at the home of her cousin, but was domiciled in Puerto Rico. See Bank One. Texas, N.A., 964 F.2d at 50; Valedon Martinez, 806 F.2d at 1132; Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 at p. 544. Residence and domicile are not synonymous for purposes of diversity jurisdiction. See Lundquist, 946 F.2d at 10. Accordingly, the Court finds that at the" }, { "docid": "217528", "title": "", "text": "sworn affidavit stating that she resides in New York; received medical treatment there and intends to remain there; a New York voter registration card showing that Plaintiff registered to vote on February 22, 2000; a New York State drivers license issued in May 2000, approximately three-months after she filed her complaint; and excerpts from her deposition transcript in which she states that she intends to remain in New York. However, remaining in a new residence in order to obtain medical care does not amount to a change in domicile for diversity of citizenship purposes. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 at p. 547. The Court further notes that a party’s bare declaration of domicile, which is self-serving in nature, is accorded little weight when in conflict with objective facts. Kressen v. National Ins. Co., 648 F.Supp. 1165, 1167 (D.Puerto Rico 1986) (Pieras J.) (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir.1985)). We now turn to the facts which are undisputed. Plaintiff does not own any property in New York. However, she owns a home in Puerto Rico as well as a child care business there. She does not work in New York and she could not vote in New York on February 9, 2000, the operative date for determining diversity jurisdiction. She does not hold any bank accounts in New York even though she has received medical treatment there and does have two New York interim driver’s licenses. Nonetheless, on the date that Plaintiff filed the Complaint in the instant action, she had only been in New York for a total of twelve (12) days. In contrast, Plaintiff has been domiciled in Puerto Rico as of 1977, when she returned to the island with her family. Her husband and at least one daughter currently live there. As a general rule, no single factor is wholly determinative of diversity. Bank One, Texas, N.A., 964 F.2d at 50. However, the First Circuit has stated that the state where a person is registered to vote is a “weighty” factor in determining domicile. Id." }, { "docid": "22969424", "title": "", "text": "be considered. For purposes of diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile. Williamson v. Osenton, supra, 232 U.S. at 624, 34 S.Ct. 442. Domicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957). The rule is that statutes conferring diversity jurisdiction are to be strictly construed. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Indianapolis v. Chase National Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 86 L.Ed. 47 (1941); Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir. 1962). This means that, if a plaintiff’s claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, supra, Janzen v. Goos, supra. The standard of review, particularly in a case like this where there was no evidentiary hearing, must also be considered. While the determination of domicile is a mixed question of law and fact, the finding is not to be set aside unless clearly erroneous pursuant to Fed.R.Civ.P. 52(a). Janzen v. Goos, supra, 302 F.2d at 423-26; 13 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3612 at 725-26 (1975). Relying heavily on Stifel v. Hopkins, 477 F.2d 1116 (6th Cir. 1973), the court below found that “plaintiff’s intention to change domicile is tainted by the fact they were forced to move to New York due to Mr. Hawes’ illness.” We think the reliance on Stifel was misplaced and the finding of taint clearly erroneous. In Stifel, the Sixth Circuit reversed a ruling by the district court that, as a matter of law, a prisoner who is incarcerated in a state other than the state of his domicile prior to conviction cannot show that he is citizen of the state of incarceration for purposes of federal diversity jurisdiction. After an exhaustive and penetrating review of the cases" }, { "docid": "5075114", "title": "", "text": "3612 at 530-531; Bank One, Texas, N.A. v. Montle, 964 F.2d 48 (1st Cir.1992); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8 (1st Cir.1991). The crucial time for diversity purposes is the moment of the filing. Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 15 S.Ct. 751, 39 L.Ed. 889 (1895); Bank One Texas N.A v. Montle, 964 F.2d 48 (1st Cir.1992). Once jurisdiction has been challenged, the party involving diversity has the burden of establishing it. Bank One, 964 F.2d at 50. Further “[T]here is ... a presumption in favor of continuing domicile.” (Id.) II. Plaintiff contends that having completed D.D. 2058 (Department of Defense form 2058, State of Legal Residence Certificate on August 18,1994) prior to the filing of the complaint on December 28, 1994 is “unmistakable” evidence of his new domicile. (Opposition by Plaintiff Docket No. 47). However, an examination of the document reveals that its purpose is “for determining the correct state of legal residence for purposes of withholding income taxes from the military.” The form further forewarns the subscriber that intention of a change of domicile must be followed by the subscriber’s compliance with other criteria such as: (1) registering to vote, (2) purchasing residential property, (3) titling and registering automobiles, (4) notifying the state of the previous domicile of change of domicile, (5) preparing a new last will and testament indicating the new state of legal residence. The form states that “generally, unless these five steps have been taken, it is doubtful that your state of legal residence/domicile has changed.” Plaintiff made the following statement at his deposition: “Well since I went into the Army I have been paying taxes to the government of Puerto Rico and when I claimed any tax refunds they would practically ... what they would refund to me would be practically minimum. I then found myself in a situation when too much money was being withheld from me and then in Miami you don’t pay taxes, since I reside there. And my plans are that when I retire I will live there and change [sic] my residence.”" }, { "docid": "1897331", "title": "", "text": "by a later change in domicile. Lundquist, 946 F.2d at 10; Valedón Martínez, 806 F.2d at 1132; Hawes, 598 F.2d at 701; Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 49-50 (1st Cir.1992). It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such a change by clear and convincing evidence. See Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir.1984). In other words, a Plaintiff maintains his original domicile until he can prove by clear and convincing evidence that he has changed that domicile. Therefore, in his case, we consider Plaintiff’s domicile to be in Puerto Rico unless he can show by clear and convincing evidence that he has changed his domicile. Domicile generally requires two elements: 1) physical presence in a state, and 2) the intent to make such a state a home. Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). “The relevant standard is ‘citizenship,’ ie. ‘domicile,’ not mere residence; a party may reside in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991). The question of citizenship “is a mixed question of law and fact.” Id. Courts have identified many factors, none of which by itself is controlling, that are relevant to determine a party’s domicile. Objective indicia of intent to change domiciliary include: [t]he place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment. Lundquist, 946 F.2d at 11 (quoting 1 Moore’s Federal Practice ¶ 0.743.3 at 788 (2d ed.1991)). Statements of intent are accorded minimal weight measured against these objective factors. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir.1985). Plaintiff filed this complaint on February 6, 1997. For purposes of diversity jurisdiction, citizenship is determined as of the date of the initiation of the lawsuit. See," }, { "docid": "1897330", "title": "", "text": "Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir.1994). Since statutes conferring diversity jurisdiction must be strictly construed, where a plaintiffs claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir.1979). A person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedón Martínez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’” Rodríguez-Díaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedón Martínez, 806 F.2d at 1132; Hawes, 598 F.2d at 701; Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 49-50 (1st Cir.1992). It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such a change by clear and convincing evidence. See Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir.1984). In other words, a Plaintiff maintains his original domicile until he can prove by clear and convincing evidence that he has changed that domicile. Therefore, in his case, we consider Plaintiff’s domicile to be in Puerto Rico unless he can show by clear and convincing evidence that he has changed his domicile. Domicile generally requires two elements: 1) physical presence in a state, and 2) the intent to make such a state a home. Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). “The relevant standard is ‘citizenship,’ ie. ‘domicile,’ not mere residence; a party may reside" }, { "docid": "217526", "title": "", "text": "he is absent, he has the intention of returning’.” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988) (citing 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §§ 3612, at 526 (1984)). The law presumes that once a domicile is acquired, it continues until a new domicile is established. Bank One, Texas, N.A 964 F.2d at 50 (citing Halves v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Thus, a plaintiff who claims to have changed his domicile carries a heavy burden to demonstrate that he has established a new domicile, in order for the previously established domicile to not control. Id.; White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Moreover, once diversity jurisdiction is challenged, a plaintiff asserting it must demonstrate the facts supporting diversity jurisdiction by a preponderance of the evidence. Bank One, Texas, N.A., 964 F.2d at 50; Alicia-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.Puerto Rico 1998) (“It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such change by clear and convincing evidence.”); see also White v. All America Cable and Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). The factors relevant to determining a person’s domicile include 1) the person’s place of voting; 2) the location of the person’s real property; 3) the state issuing the person’s drivers license; 4) the state where the person’s bank accounts are maintained; 5) the state where the person has a club or church membership; and 6) the state where the person is employed. Bank One, Texas, N.A., 964 F.2d at 50. In this case, Plaintiff alleges that she was domiciled in New York on February 9, 2000, the date in which she filed her Complaint. Defendants, who are all domiciliaries of Puerto Rico, challenge this Court’s jurisdiction by asserting that Plaintiffs domicile on the date that the Complaint was filed was Puerto Rico. Plaintiff countered Defendants’ evidence with documents illustrating that she has been receiving medical treatment in New York; her" } ]

[ { "docid": "18217667", "title": "", "text": "in that it imposes forfeiture “directly on the individual as part of criminal prosecution rather than a separate proceeding in rem against the property.” Cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759. Judge Alvin Rubin gives an excellent history of RICO in the Cauble case, supra. On page 1345, Judge Rubin states: “Congress added the forfeiture provision to RICO in order to attack the sources of economic power of organized crime in addition to removing from power and imprisoning those individuals who violate the statute. It viewed the sanctions and remedies against organized crime then available to the government as ‘unnecessarily limited in scope and impact.’ As enacted the forfeiture provisions are meant to reach ‘the ill-gotten gains of criminals where they enter or operate an organization through a pattern of racketeering activities.’ ” On page 1350, Judge Rubin states: “We reiterate that property forfeited under RICO need not be ‘guilty’.” We realize that the defendants rely heavily on the case of U.S. v. McManigal, 708 F.2d 276 (7th Cir.1983). In the McManigal case, the defendant appealed from a conviction of mail fraud and racketeering under 18 U.S.C. § 1962, which charged McManigal, a Chicago attorney, for knowingly participating in a scheme to defraud Cook County citizens of their right to have faithful and honest services of two employees of the Cook County Board of Tax Appeals and that as a result of the fraud the law firm in which the defendant had an interest illegally obtained $249,250.00 in legal fees in the form of accounts receivable. Count 16 of the indictment sought forfeiture of accounts receivable of the law firm. McManigal had a 40% interest in this $249,- 250.00 in fees. The forfeitures specifically spelled out that the forfeiture was for accounts receivable in the amount of $99,-700.00. The Court in reversing the forfeitures stated among other things, “An interest in accounts receivable, however, may vanish once the accounts are paid up.” In the instant case, the forfeiture is against a specific amount of money, paid directly to the defendants, and not to a firm in" } ]

[ { "docid": "20308959", "title": "", "text": "of the victims, who bear no responsibility for the government’s failure to compile the necessary documentation, to go unremunerated. We cannot permit this outcome. B. Forfeiture Finally, the government challenges the $1,659.72 forfeiture order. We “review ... factual findings for clear error but apply a de novo standard of review to [the issue] of whether or not those facts render the [asset] subject to forfeiture.” United States v. Dodge Caravan Grand SE/Sport Van, VIN No. 1B4GP44G2YB7884560, 387 F.3d 758, 761 (8th Cir.2004). The United States may seek forfeiture of “[a]ny property, real or personal, which constitutes or is derived from the proceeds traceable to a violation of ... any offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title).” 18 U.S.C. § 981(a)(1)(C). Mail fraud is a “specified unlawful activity.” 18 U.S.C. § 1956(c)(7) (incorporating the Racketeer Influenced and Corrupt Organizations (RICO) predicate offenses found in 18 U.S.C. § 1961(1), which include mail fraud); see United States v. Jennings, 487 F.3d 564, 585 (8th Cir.2007). “Proceeds” includes “property of any kind obtained directly or indirectly, as the result of the commission of .the offense giving rise to forfeiture.” 18 U.S.C. § 981(a)(2)(A). The amount of the forfeiture order in this case matched exactly the amount of the restitution order. Yet restitution and forfeiture are different concepts. In short, “Restitution is loss based, while forfeiture is gain based.” United States v. Genova, 333 F.3d 750, 761 (7th Cir.2003). As such, we cannot agree with the district court that $1,659.72 “represents] the proceeds of the criminal scheme during the time of the Defendant’s participation.” Final Order of Forfeiture 1. Rather, we believe that-sum describes exactly what the district court said in its restitution order: the amount of loss proved by the victims at the time the court ordered. restitution. We further believe the record clearly, shows Adetiloye gained more than $1,659.72 in proceeds from this extensive mail fraud scheme. We must therefore conclude the district .court clearly erred when it ordered Adetiloye to forfeit only $1,659.72. IV We affirm Adetiloye’s sentence, but vacate and remand the restitution orders to" }, { "docid": "9987452", "title": "", "text": "charges levied against him in his criminal prosecution. See Am. Compl. ¶¶ 120-155. This Court’s jurisdiction rests on 28 U.S.C. § 1355(a), and venue is proper here because all of the defendant properties are located in foreign bank accounts, and “[wjhenever property subject to forfeiture under the laws of the United States is located in a foreign country ... an action or proceeding for forfeiture may be brought ... in the United States District Court for the District of Columbia.” All Assets I, 571 F.Supp.2d at 7 & n. 6 (quoting 28 U.S.C. § 1355(b)(2)); see United States v. All Funds in Account Nos. 747.034/278, 747.009/278, & 747.714/278 in Banco Espanol de Credito, Spain, 295 F.3d 23, 26 (D.C.Cir.2002). The amended complaint includes eight claims for forfeiture falling into two general categories. The first four claims for relief allege the direct forfeiture of criminal proceeds pursuant to 18 U.S.C. § 981(a)(1)(C), which provides for the forfeiture of proceeds from violation of certain enumerated criminal statutes or any offense constituting “specified unlawful activity” as defined in 18 U.S.C. § 1956(c)(7). See Am. Compl. ¶¶ 120-139. The last four claims for relief allege forfeiture of property involved in money laundering violations pursuant to 18 U.S.C. § 981(a)(1)(A), which provides for the forfeiture of any property involved in or traceable to a violation of the money laundering provisions of 18 U.S.C. §§ 1956 and 1957. Am. Compl. ¶¶ 140-155. The plaintiff argues that all of the defendant properties are forfeitable under either theory. Civil forfeiture actions are governed by the procedures set forth in 18 U.S.C. § 983 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Supplemental Rules”), a subset of the Federal Rules of Civil Procedure. When the government files a complaint for forfeiture, “any person claiming an interest in the seized property may file a claim asserting such person’s interest in the property in the manner set forth in the Supplemental Rules[J” 18 U.S.C. § 983(a)(4)(A); see Supp. R. G(5)(a). Nine individuals and three business entities filed claims contesting the forfeiture in this action. The individual" }, { "docid": "22366397", "title": "", "text": "U.S.C. § 1956(a)(1), and the term “transaction” is defined in the statute. See id. § 1956(c)(3). Unlike the RICO context, we have no reason to doubt that the amount of the transaction that forms the basis of a substantive money laundering offense will be identified in the indictment and, thus, that its connection to money laundering activity will have been proved beyond a reasonable doubt at trial. As the government has observed, in many cases the only factual issues left for resolution after trial will be whether particular items bought with tainted funds are “traceable to” money laundering activity. Applying a beyond-a-reasonable-doubt standard to that issue appears unnecessary. Accordingly, we agree with the Eighth Circuit’s decision in Myers that the government’s burden for forfeiture under § 982(a)(1) is the preponderance standard. B. Voigt next argues that the government failed to prove that the money used to purchase the jewelry in question was “traceable to” money laundering proceeds, as required by 18 U.S.C. § 982(a)(1). His argument is based on the fact that the jewelry was purchased with funds drawn from an account in which money laundering proceeds had been commingled with other funds, and that those funds were further “diluted” by numerous intervening deposits and withdrawals. Voigt asserts that if the jewelry was subject to forfeiture, it was under 21 U.S.C. § 853(p)(5), the CCE substitute asset provision incorporated into the money laundering forfeiture scheme via 18 U.S.C. § 982(b)(1). The government counters by observing that criminal forfeiture is an in personam punishment, which obviates the need for strict tracing, especially where tainted and untainted funds are commingled in a bank account, making tracing a virtual impossibility. 1. The government’s observation concerning the in personam nature of criminal forfeiture is helpful to a certain extent: the amount of forfeiture to which the government is entitled under 18 U.S.C. § 982 is not dictated by whether the government can prove that certain of the defendant’s property is in fact property “traceable to” money laundering activity. When a defendant has been convicted of committing $1.6 million in money laundering offenses (as Voigt" }, { "docid": "7485160", "title": "", "text": "the funds. This court examines each of these arguments below. I. Banco Cafetero Probable cause to seize and forfeit an active bank account under civil forfeiture laws requires that the funds in that account be somehow “traceable” to the alleged unlawful activity that gave rise to the forfeiture in the first place. See 18 U.S.C. § 981(a)(1)(A); 21 U.S.C. § 881(a)(6). In Banco Cafetero, 797 F.2d 1154 (2d Cir.1986), the government sought forfeiture of narcotics proceeds that had been deposited in various bank accounts in which the tainted funds were then commingled with allegedly legitimate money. The statutory basis for forfeiture was a provision of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a)(6), which provides that the United States may forfeit: (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(6) (emphasis added). The claimants in Banco Cafetero contended “that the fungibility of money makes it impossible to consider any portion of the depositor’s credit balance to be ‘traceable proceeds’ because the credit balance does not represent just the proceeds of drug sales but is instead the net result of various deposits and withdrawals.” Banco Cafetero, 797 F.2d at 1159. In rejecting that contention and holding that the forfeiture statute could reach proceeds “commingled” with other assets, the Second Circuit relied upon the Joint Explanatory Statement of Titles II and III, Psychotropic Substances Act of 1978, Pub.L. No. 95-633, reprinted in 1978 U.S.Code Cong. & Ad.News 9518, 9522, which provides as follows: [I]f such proceeds were, for example," }, { "docid": "22348347", "title": "", "text": "offense in violation of section 1956, 1957, or 1960 of this title, shall order that the person forfeit to the United States any property, real or personal, involved in such offense; or any property traceable to such property. (2) The court, in imposing sentence on a person convicted of a violation of, or a conspiracy to violate— (A) section ... 1341 [mail fraud] ... of this title, affecting a financial institution....” . In relevant part, 18 U.S.C. § 981 states, \"§981. Civil forfeiture (a)(1) The following property is subject to forfeiture to the United States: (C) Any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of ... any offense constituting \"specified unlawful activity” (as defined in section 1956(c)(7) of this ti-tie), or a conspiracy to commit such offense.” Section 1956(c)(7) of Title 18 in turn references the offenses identified in 18 U.S.C. § 1961(1), which list of offenses includes mail fraud without any limitation to mail fraud perpetrated against financial institutions. . Thus, § 2461(c) would not by itself enable criminal forfeiture proceeds from mail fraud against financial institutions, because a statutory provision for criminal forfeiture of proceeds from that kind of mail fraud, 18 U.S.C. § 982(a)(2)(A), already exists. See United States v. Thompson, 2002 WL 31667859, at *2 (N.D.N.Y. Nov.26, 2002) (disallowing criminal forfeiture of drug crime proceeds under § 2461(c) because charged drug crime had associated statutory provision for criminal forfeiture upon conviction). . As further evidence the statute was not intended to limit forfeitures to those assets available at the time of a forfeiture order, we observe that 21 U.S.C. § 853(o) states that \"[t]he provisions of this section shall be liberally construed to effectuate its remedial purposes.” By requiring a defendant to return his illicit gains without regard to his solvency, we believe the forfeiture judgment issued in this case serves the remedial purposes of 21 U.S.C. § 853 by combating mail fraud schemes and deterring those who would commit such crimes. . In relevant part, 17 U.S.C. § 506 states, “(a) Criminal infringement— (1) In general. —" }, { "docid": "22366398", "title": "", "text": "purchased with funds drawn from an account in which money laundering proceeds had been commingled with other funds, and that those funds were further “diluted” by numerous intervening deposits and withdrawals. Voigt asserts that if the jewelry was subject to forfeiture, it was under 21 U.S.C. § 853(p)(5), the CCE substitute asset provision incorporated into the money laundering forfeiture scheme via 18 U.S.C. § 982(b)(1). The government counters by observing that criminal forfeiture is an in personam punishment, which obviates the need for strict tracing, especially where tainted and untainted funds are commingled in a bank account, making tracing a virtual impossibility. 1. The government’s observation concerning the in personam nature of criminal forfeiture is helpful to a certain extent: the amount of forfeiture to which the government is entitled under 18 U.S.C. § 982 is not dictated by whether the government can prove that certain of the defendant’s property is in fact property “traceable to” money laundering activity. When a defendant has been convicted of committing $1.6 million in money laundering offenses (as Voigt was here), the government has proved beyond a reasonable doubt that it is entitled to $1.6 million in criminal forfeiture; that amount represents property “involved in” money laundering activity ' for purposes of § 982(a)(1). What is at issue here is the question of how the government may go about seizing property in satisfaction of that $1.6 million amount. The government’s principal contention is that money is fungible, making it impossible to differentiate between “tainted” and “untainted” dollars in a bank account. The government also advances what is clearly a policy argument, contending that interpreting the term “traceable to” to require even some tracing “would perversely permit money launderers to escape with all of their proceeds intact simply by commingling such tainted proceeds with untainted sums — a result Congress could not have intended.” Government’s Br. at 53. To support its arguments, the Government has cited a number of cases dealing with the tracing issue in the context of 18 U.S.C. § 1963(a), the RICO statute’s criminal forfeiture provision. See generally United States v. Robilotto," }, { "docid": "11827644", "title": "", "text": "average of $2400 based on audits performed by the Internal Revenue Service' — • and noting that the loss amount, “far from being unfair to [the defendant], was highly generous to him”). Although there will undoubtedly be situations in which a district court’s estimate of loss amount falls outside the boundaries of reasonableness, we need not define precisely what those boundaries are. It is enough that the district court here did not exceed them. B. Forfeiture Amount Uddin did not object to the amount of the forfeiture order below, and thus we review the forfeiture amount for plain error. For this Court to correct the forfeiture amount, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citation, alterations, and internal quotation marks omitted). Here, the district court did not commit any error, plain or otherwise. Under 18 U.S.C. § 981(a)(1)(C), “[a]ny property, real or personal, which constitutes or is derived from proceeds traceable” to food stamp fraud “is subject to forfeiture to the United States.” “In cases involving ... unlawful activities, ... the term ‘proceeds’ means property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.” Id. § 981(a)(2)(A) (emphasis added). In this case, the entire amount of the loss determined by the district court was paid by the government into Uddin’s bank account. Whether or not Uddin shared the cash he received from the government with the food stamp beneficiary, the entire loss amount paid by the government was diverted from its intended purpose. As we already have found, this loss amount was reasonable. Because the statute directs that “proceeds” are not" }, { "docid": "5766377", "title": "", "text": "665,750.00 K. Saccoccio 31:5324(3) 1 $ 52,800.00 S. Cerilla Pursuant to 18 U.S.C. § 1963(a)(1) and (2), the government seeks forfeiture of the Sac-coccias’ interest in all assets, including bank accounts, of Trend, Saccoccia Coin and IMM as well as International Chain Sales, Vogue Precious Metals, Refined Metals, Gold Enterprises Refinery, and SASCO Refining Company, which were other companies used in the defendants’ money laundering activities. In addition, the government alleges that, under 18 U.S.C. § 1963(a)(3), each defendant should forfeit the amount of $136,-344,231.86 which the government contends is the amount “constituting or derived from [the] proceeds” obtained by the defendants from racketeering activity. Finally, the government asserts that, under the Criminal Forfeiture statute, 18 U.S.C. § 982(a), each defendant should be required to forfeit the amounts involved in the transactions that were the subjects of the substantive offenses for which that defendant was convicted. Those claims raise several issues of first impression regarding the manner in which the forfeiture provisions contained in both RICO and the Criminal Forfeiture statute should be construed. In analyzing those provisions, a page of history is worth a volume of logic. DISCUSSION I. Historical Background The origins of both criminal and civil forfeiture may be traced to English common law. Criminal forfeiture was a penalty constituting one of the incidents of the state of attainder in which individuals convicted of felonies were placed. See generally Avery v. Everett, 110 N.Y. 317, 18 N.E. 148 (1888). It operated in personam against the defendant and required that all of the goods, chattels, lands, and tenements of the attainted felon be forfeited to the king as part of the felon’s punishment for committing the crime. The defendant’s property was forfeited whether or not it was linked to the crime. Civil forfeiture, on the other hand, resulted from an in rem proceeding against property itself. It was based on the notion that property associated with criminal activi ty was tainted and, therefore, became forfei-table even if not owned by the person perpetrating the crime. Abuses of the bill of attainder by the English monarchy led the Framers" }, { "docid": "6627269", "title": "", "text": "Of the remaining money laundering counts (counts 31-36), a verdict of $1,055,395.71 — representing the balance on deposit in the California Federal account — was returned. The district court reduced the forfeiture to $700,000. Tencer argues that the forfeiture order must be reversed in its entirety because it includes proceeds from legitimate insurance claims. The government responds that reversal is inappropriate and that, instead, the jury ver- diet ordering forfeiture of the California bank account should be reinstated. Forfeiture in this ease was imposed pursuant to 18 U.S.C. § 982(a)(1), a mandatory-criminal forfeiture provision stating: The court, in imposing sentence on a person convicted of an offense in violation of ... Section 1956 ... of this title, shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property. 18 U.S.C. § 982(a)(1) (emphasis added). The government argues that all of the funds in the California Federal account were forfeita-ble because any legitimate funds involved and “facilitated” the offense by providing a cover for the tainted funds. This “facilitation theory” rests largely on a passage in the legislative history of § 981, § 982’s civil counterpart: “[T]he term ‘property involved’ is intended to include the money or other property being laundered (the corpus), any commissions or fees paid to the launderer, and any property used to facilitate the laundering offense.” United States v. All Monies ($477,048.62) in Account 90-3617-3, 754 F.Supp. 1467, 1473 (D.Hawai’i 1991) (citing 134 Cong. Rec. S17365 (daily ed. Nov. 10, 1988) (emphasis added)). Facilitation occurs when the property makes the prohibited conduct “less difficult or more or less free from obstruction or hindrance.” United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.1990) (defining term in context of a drug forfeiture statute that expressly used the “facilitating” language (internal citations omitted)). Several district courts have upheld the forfeiture of the entire balance of accounts containing both tainted and untainted funds. There, courts have concluded that the commingling of crime proceeds and “clean” money makes money laundering less difficult and may even be" }, { "docid": "7485159", "title": "", "text": "this motion. Should it appear from the affidavits of the party opposing the sum mary judgment motion — in this case, the government — that it cannot present facts essential to justify such opposition, the court may deny the motion or order a continuance to permit discovery to proceed. Fed.R.Civ.P. 56(f). As alluded to above, claimants in this case essentially make three arguments in favor of them motion for summary judgment. They first assert that based on the Second Circuit case of United States v. Banco Cafetero Panama, 797 F.2d 1154 (2d Cir.1986), the government lacked probable cause to seize and forfeit the monies on deposit in the subject accounts since any tainted funds (or “traceable proceeds”) had entered and left the accounts prior to the government’s November 1992 seizure. Second, claimants assert that the statutory “fungible property” exception to this tracing analysis has a one-year limitations period which bars this action, since the defendant funds were seized more than twelve months after the Remendón search. Third, claimants contend that they are “innocent owners” of the funds. This court examines each of these arguments below. I. Banco Cafetero Probable cause to seize and forfeit an active bank account under civil forfeiture laws requires that the funds in that account be somehow “traceable” to the alleged unlawful activity that gave rise to the forfeiture in the first place. See 18 U.S.C. § 981(a)(1)(A); 21 U.S.C. § 881(a)(6). In Banco Cafetero, 797 F.2d 1154 (2d Cir.1986), the government sought forfeiture of narcotics proceeds that had been deposited in various bank accounts in which the tainted funds were then commingled with allegedly legitimate money. The statutory basis for forfeiture was a provision of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a)(6), which provides that the United States may forfeit: (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended" }, { "docid": "22366454", "title": "", "text": "money laundering activity: Because criminal forfeitures are in personam ... the substitute assets provision, also gives the government the ability to receive, in essence, a general judgment against the defendant. When a certain sum is alleged in the indictment as the amount of criminal proceeds and those proceeds can not be found after the jury enters a special verdict against that sum, the government can then execute against any other property belonging to the defendant. Arthur W. Leach & John G. Malcolm, Criminal Forfeiture: An Appropriate Solution to the Civil Forfeiture Debate, 10 Ga. St. U.L.Rev. 241, 295 n. 164 (1994) (so concluding in the RICO forfeiture context). . Interpreting the word \"traceable to\" to mean exactly what it says is no doubt salutary. We avoid the problems plaguing other courts that have attempted to devise a workable tracing analysis for tainted property that has been commingled in a bank account with untainted property. See United States v. Banco Cafetero Panama, 797 F.2d 1154 (2d Cir.1986) (exploring various tracing options); see also $448,-342.85, 969 F.2d at 477 (“It is easy to imagine difficult problems in associating proceeds with crime”). . The Seventh Circuit’s opinion in United States v. $448,342.85 dealt with the money laundering civil forfeiture statute, 18 U.S.C. § 981, which also contains the terms “involved in” and \"traceable to.\" The decision was handed down prior to Congress’ enactment of 18 U.S.C. § 984, a-substitute asset provision applicable to civil forfeiture under § 981. It is significant that in the absence of such a provision, the court refused to countenance the government’s argument that the terms \"involved in” and \"traceable to” need not be given their ordinary meaning. $448,342.85, 969 at 477 (\"Only property used in or traceable to the 'specified unlawful activity' is forfeit.”). . We do not understand the phrase \"cannot be divided without difficulty” in § 853(p)(5) as meaning simply that the amount of crime proceeds cannot be separated out (e.g., where tainted and untainted funds are pooled together to purchase a piece of real property). We think the substitute asset provision applies equally to commingling" }, { "docid": "23644389", "title": "", "text": "that the tainted funds were not Billman’s to give away. Nevertheless, the district court drew contrary inferences and we are bound by its findings. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Therefore, we are compelled to conclude for the purpose of this case that the source of the funds was money which Billman did not steal from Community. IV Title 18 U.S.C. § 1963(a)(1) and (3) provides: (a) Whoever violates any provision of section 1962 of this chapter ... shall forfeit to the United States, irrespective of any provision of State law— (1) any interest the person has acquired or maintained in violation of section 1962; # * * * * * (3)any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962. A RICO forfeiture pursuant to this statute is not an in rem proceeding against guilty assets. The forfeiture is, instead, an in personam proceeding against the defendant, and the forfeiture constitutes partial punishment for the offense. See United States v. Conner, 752 F.2d 566, 576 (11th Cir.1985). The government is not required to trace the proceeds of the RICO offense into a specific bank account in order to execute a forfeiture judgment. United States v. Robilotto, 828 F.2d 940, 949 (2d Cir.1987). Instead, a forfeiture money judgment can be satisfied out of any of the defendant’s assets. United States v. Ginsburg, 773 F.2d 798, 800-03 (7th Cir.1985). These principles are embodied in an amendment to the Act, 18 U.S.C. § 1963(m), which makes provision for the forfeiture of substitute assets: (m) If any of the property described in subsection (a), as a result of any act or omission of the defendant— ****** (3) has been placed beyond the jurisdiction of the court; * * * * * * the court shall order the forfeiture of any other property of the defendant.... The indictment alleges that Billman has placed the funds of the defrauded savings and loan in Swiss banks—that is, beyond" }, { "docid": "8756444", "title": "", "text": "2315 [of Title 18] (relating to interstate transportation of stolen property).” 18 U.S.C. § 1961(1)(B). While § 981 authorizes only civil forfeitures, the forfeitable property it describes is made subject to criminal forfeiture by the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), Pub.L. No. 106-185, § 16, codified at 28 U.S.C. § 2461(c) (providing for the criminal forfeiture of any property for which forfeiture “is authorized in connection with a violation of an Act of Congress ... but no specific statutory provision is made for criminal forfeiture upon conviction” (emphasis added)). Sentencing courts determine forfeiture amounts by a preponderance of the evidence. See United States v. Fruchter, 411 F.3d 377, 383 (2d Cir.2005). Under 18 U.S.C. § 981(a)(1)(C), the government is entitled to forfeiture of funds that “constitutef ] or [are] derived from proceeds traceable to a violation” of § 2314. The violation on which the forfeiture is based must be the specific violations of which Capoccia was convicted, not some other, separate § 2314 violations. See 18 U.S.C. § 981(a)(2)(A) (defining “proceeds” as “property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto”); 28 U.S.C. § 2461(c) (providing for forfeiture in connection with a “violation” with which a person “is charged in an indictment or information,” upon “conviction” for that violation). Requiring the government to link assets to specific crimes of conviction is not only consistent with the punitive purposes of criminal forfeiture, see Libretti, 516 U.S. at 39-40, 116 S.Ct. 356, but also implements Congress’s intent in enacting CAFRA. The legislative history of that Act suggests that § 2641(c) was designed to prevent abuse of the civil forfeiture process in part by encouraging the government to seek forfeiture through criminal proceedings, where it would have to link targeted property to a specific criminal conviction. See H.R. Rep. 106-192, at 8 (1999) (describing perceived abuses of civil forfeiture process, which were possible in part because government could seize property without linking it to a criminal conviction); 146 Cong. Rec. S1753-02 (explaining purpose" }, { "docid": "19675811", "title": "", "text": "by fraud. Am. Compl. ¶ 19; Opp. at 10. In June 2000, “a Swiss court convicted Lazarenko of money laundering after La-zarenko accepted charges of money laundering related to abuse of power committed to the detriment of Ukraine.” Am. Compl. ¶ 16. In addition, Lazarenko has been charged in Ukraine with abuse of public office. Id. ¶ 15. The defendants in rem in this case were obtained based on some of the conduct that led to Lazaren-ko’s indictments and convictions and are currently located in foreign bank accounts in Guernsey, Antigua & Barbuda, Switzerland, Lithuania, and Liechtenstein. Id. ¶¶ 1,17-19. B. Overview of Claims The United States brings eight claims for forfeiture falling into two general categories. The First, Second, Third and Fourth Claims for Relief allege the direct forfeiture of criminal proceeds pursuant to 18 U.S.C. § 981(a)(1)(C), which provides for the direct forfeiture of proceeds from violation of certain enumerated criminal statutes or any offense constituting “specified unlawful activity” as defined in 18 U.S.C. § 1956(c)(7). See Am. Compl. ¶¶ 120-139. The Fifth, Sixth, Seventh and Eighth Claims for Relief allege forfeiture of property involved in money laundering violations pursuant to 18 U.S.C. § 981(a)(1)(A), which provides for the forfeiture of any property involved in or traceable to a violation of the money laundering provisions of 18 U.S.C. §§ 1956 and 1957. Am. Compl. ¶¶ 140-155. The United States argues that all of the defendant properties are forfeitable under either theory. Claimants argue both that the Court lacks subject matter jurisdiction and that the government has failed to state a claim with respect to each claim. 1. Section 981(a)(1)(C) Direct Forfeiture Claims The direct forfeiture claims, brought under 18 U.S.C. § 981(a)(1)(C), allege that the defendant properties are the proceeds of four offenses occurring, in part, in the United States or affecting the interstate or foreign commerce of the United States, and two foreign offenses for which direct forfeiture is specifically authorized by law. Under 18 U.S.C. § 981(a)(1)(C), the following property is subject to forfeiture to the United States: Any property, real or personal, which constitutes or" }, { "docid": "8756443", "title": "", "text": "charged and convicted. We find that it has not done so. The Federal Rules of Criminal Procedure require that “[i]f the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense.” Fed.R.Crim.P. 32.2(b)(1). The “requisite nexus” for a violation of 18 U.S.C. § 2314 is set forth in 18 U.S.C. § 981(a)(1)(C), which subjects to civil forfeiture “[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of [various sections of Title 18] or any offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.” Section 1956(c)(7)(A) defines “specified unlawful activity” as, inter alia, “any act or activity constituting an offense listed in section 1961(1) of this title,” with an exception not relevant here. Section 1961(1), within the definitional section of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), defines “racketeering activity” as, inter alia, “any act which is indictable under ... sections 2314 and 2315 [of Title 18] (relating to interstate transportation of stolen property).” 18 U.S.C. § 1961(1)(B). While § 981 authorizes only civil forfeitures, the forfeitable property it describes is made subject to criminal forfeiture by the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), Pub.L. No. 106-185, § 16, codified at 28 U.S.C. § 2461(c) (providing for the criminal forfeiture of any property for which forfeiture “is authorized in connection with a violation of an Act of Congress ... but no specific statutory provision is made for criminal forfeiture upon conviction” (emphasis added)). Sentencing courts determine forfeiture amounts by a preponderance of the evidence. See United States v. Fruchter, 411 F.3d 377, 383 (2d Cir.2005). Under 18 U.S.C. § 981(a)(1)(C), the government is entitled to forfeiture of funds that “constitutef ] or [are] derived from proceeds traceable to a violation” of § 2314. The violation on which the forfeiture is based must be the specific violations of which Capoccia was convicted, not some other, separate § 2314 violations. See 18 U.S.C. § 981(a)(2)(A) (defining “proceeds” as" }, { "docid": "1564076", "title": "", "text": "filed complaints for civil forfeiture in rem against this real property, vehicles, and bank accounts. The complaint against the bank accounts sought forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A) (2000 & Supp. I), which permits forfeiture of property “involved in” money laundering, and 18 U.S.C. § 981(a)(l)(C)(2000), which permits forfeiture of property “derived from proceeds” resulting from making false statements to the FCIC in violation of 18 U.S.C. § 1014 (2000). The complaint alleges that all of the funds in the bank accounts are forfeitable because “in whole or in part” they constituted the direct proceeds of the FCIP fraud or were involved in or facilitated money laundering transactions. Government affidavits similarly attest that the amounts in the bank accounts were “commingled [with] the illegally obtained crop insurance payments” and were “used to promote and carry on money laundering offenses” and that illegally obtained crop insurance payments were used to purchase or refinance the real property through cash payments in an effort to “conceal the origin” of that money. The Warrens responded by filing an answer, as claimants to the property, asserting their interest in the seized property and objecting to its seizure. They also filed a motion asking the court to release “$350,000 from the seized [bank] accounts” so that they could pay their attorneys’ fees. In support of this motion, the Warrens asserted that they satisfied the requirements for “hardship” release set forth in 18 U.S.C. § 983(f) (2000), which permits release pending the completion of forfeiture proceedings in limited circumstances. After the parties submitted additional memoranda and affidavits, including an affidavit from Robert Warren and an affidavit under seal from the Government, the district court held a hearing on the matter. On July 7, 2003, the court issued a memorandum and order directing the Government to release the amounts seized from the bank accounts, totaling $303,162.28, to an interest bearing account. The court directed that: The attorneys for [the Warrens] shall present to the Clerk of Court unpaid bills for services rendered in connection with the criminal investigation as well as this action and any other related," }, { "docid": "22366402", "title": "", "text": "to,” as did the courts in the RICO context, to avoid a perceived bad policy result. See United States v. Ripinsky, 20 F.3d 359, 365 n. 8 (9th Cir.1994) (“ § 982 ... defines forfeitable assets to be only those associated with the underlying offense or traceable to the offense and distinguishes between ‘forfeitable’ and ‘substitute’ assets.”). Because Congress has made the determination not to “perversely permit money launderers to escape with all of their proceeds intact simply by commingling such tainted proceeds with untainted sums_,” Government’s Br. at 53, we should not be in the business of overlooking the plain terms of a statute in order to implement what we, as federal judges, believe might be better policy. Accordingly, the government’s policy arguments, along with the cases supporting them, are inappo-site. Seeking to avoid our conclusion that cases decided prior to the enactment of the money laundering forfeiture statute are not controlling, the government observes that in 1986 Congress added a substitute asset provision to RICO’s forfeiture scheme. Relying on In re Billman, 915 F.2d 916, 920 (4th Cir.1990), cert. denied, 500 U.S. 952, 111 S.Ct. 2258, 114 L.Ed.2d 711 (1991), the government contends that the addition of a substitute asset provision to the RICO statute could not affirmatively undo the settled judicial determination that the words “traceable to” in the RICO forfeiture statute do not require tracing of commingled funds. The government therefore suggests that in the money laundering forfeiture context it can seek forfeiture of items purchased with commingled funds either as “traceable to” or as substitute assets. We disagree. As the Ninth Circuit’s decision in Ripinsky makes clear, the government’s position is internally inconsistent. The substitute asset provision comes into play only when forfeitable property cannot be identified as directly “involved in” or “traceable to” money laundering activity. Clearly, if funds commingled in a bank account are sufficiently identifiable as to be considered “traceable to” money laundering activity, then the substitute asset provision should have no applicability whatsoever. Accordingly, the government’s contention that the “traceable to” and substitute asset theories merely create alternative paths to forfeiture," }, { "docid": "18098564", "title": "", "text": "any identical property found in the same place or account as the property involved in the offense that is the basis for the forfeiture shall be subject to forfeiture under this section. (c)No action pursuant to this section to forfeit property not traceable directly to the offense that is the basis for the forfeiture may be commenced more than 1 year from the date of the offense. 18 U.S.C. § 984. Section 984 thus authorizes broad “substitute\" seizures, but it simultaneously tempers the additional power given the government by means of a shorter statute of limitations. See U.S. v. All Funds Presently on Deposit or Attempted to be Deposited in any Accounts Maintained at American Exp. Bank, 832 F.Supp. 542, 558 (E.D.N.Y.1993). . Section 981(a)(1)(A) provides in pertinent part: (a)(1) [T]he following property is subject to forfeiture to the United States: (A) Any property, real or personal, involved in a transaction or attempted transaction in violation of section 5313(a) or 5324(a) of title 31, or of section 1956 or 1957 of this title, or any property traceable to such property. 18 U.S.C. § 981(a)(1)(A). . Because claimant has only attached three pages of the government’s reply brief in All Funds, taken out of context, it is difficult for this court to ascertain the complete thrust of the argument. However, I find no direct inconsistency between the arguments made in this case concerning when funds can be deemed \"proceeds” used in a monetary transaction and the argument in All Funds, which appeared to focus primarily on the statute of limitations issue. Moreover, All Funds is currently on appeal to the Second Circuit Court of Appeals. . Claimant argues that \"[t]here are several functional defects” in the government’s claim that the deposit of the mortgage proceeds violates the money laundering statutes. (Reply Mem. of Law in Support of Claimant’s Motion for Judgment on the Pleadings, dated Oct. 28, 2002, at 17-18.) She contends that, although the government may forfeit equity in property acquired as a result of “tainted mortgage payments,” it may \"only do so to the extent and amount that criminal" }, { "docid": "11827645", "title": "", "text": "and internal quotation marks omitted). Here, the district court did not commit any error, plain or otherwise. Under 18 U.S.C. § 981(a)(1)(C), “[a]ny property, real or personal, which constitutes or is derived from proceeds traceable” to food stamp fraud “is subject to forfeiture to the United States.” “In cases involving ... unlawful activities, ... the term ‘proceeds’ means property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.” Id. § 981(a)(2)(A) (emphasis added). In this case, the entire amount of the loss determined by the district court was paid by the government into Uddin’s bank account. Whether or not Uddin shared the cash he received from the government with the food stamp beneficiary, the entire loss amount paid by the government was diverted from its intended purpose. As we already have found, this loss amount was reasonable. Because the statute directs that “proceeds” are not limited to net profits from the crime, and because any proceeds directly traceable to food stamp fraud are subject to forfeiture, the district court did not commit error by entering a forfeiture order equal to the entire loss amount. Uddin also suggests that the loss amount cannot also be “proceeds” for forfeiture purposes because the district court made no explicit finding of what the proceeds were. But the fact that the district court imposed an amount of forfeiture identical to the loss amount implies that it so found. The court was entitled to do so “on evidence ... presented by the parties at a hearing after the ... finding of guilt,” Fed.R.Crim.P. 32.2(b)(1), in this case, the sentencing hearing. Uddin offers no authority for the proposition that this procedure was error, much less plain error. Conclusion We have considered all of Uddin’s other contentions on this appeal and have found them to be without merit. The judgment of the district court is AFFIRMED." }, { "docid": "7485172", "title": "", "text": "in the Second Circuit have discussed facilitation theory under Section 981. First, in Certain Funds in New York, 769 F.Supp. at 82, the government commenced a civil forfeiture proceeding pursuant to 18 U.S.C. § 981(a)(1)(A) against all funds on deposit in accounts allegedly used by the perpetrators of a fraud to launder the proceeds of that fraud. Id. at 82. Claimants argued that the government was not entitled to arrest the entire contents of the accounts but rather only the amounts actually traceable to proceeds of the alleged illegal activities. Id. at 84. Judge Spatt disagreed, adopting the facilitation theory based on the following rationale: Section 981(a)(1)(A) of Title 18 U.S.C. ... has been construed by the district courts as authorizing the forfeiture of an entire bank account or business which was used to “facilitate” the laundering of money in violation of 18 U.S.C. § 1956 (see, e.g., United States v. All Monies ($477,048.62) in Account No. 90-3617-3, 754 F.Supp. 1467, 1473 [D.Haw.1991]____ Even if a portion of the property sought to be forfeited is used to “facilitate” the alleged offense, then all of the property is forfeitable (see United States v. Santoro, 866 F.2d 1538, 1542 [4th Cir.1989) ]..... As the government contends, limiting the forfeiture of funds under [the present] circumstances to the proceeds of the initial fraudulent activity would effectively undermine the purpose of the forfeiture statute. Criminal activity such as money laundering largely depends upon the use of legitimate monies to advance or facilitate the scheme. It is precisely the commingling of tainted funds ivith legitimate money that facilitates the laundering and enables it to continue. Id. at 84-85 (emphasis added). Accordingly, the claimants’ motion for summary release of the funds was denied. The two other courts in this circuit to comment on facilitation have done so less directly. In Great Eastern Bank, 804 F.Supp. at 447, Judge Amon found the facilitation theory inapplicable to forfeiture actions based solely on violations of the currency reporting requirements under 31 U.S.C. §§ 5313 and 5324 without any showing that the offending transactions involved the proceeds of illegal activity;" } ]

[ { "docid": "872291", "title": "", "text": "way fails to comply with the instant order.” A careful consideration of the record in this case, including the briefs of the parties and the exhibits introduced with respect to the instant motion to dismiss, persuades the court that Magistrate Balog was well justified in recommending the dismissal of the instant complaint with prejudice. The plaintiffs have also sought leave to file their “third amended complaint,” as well as a commensurate extension of time for discovery. Under F.R.Civ.P. 15(a) a party is entitled to only one amended pleading as a matter of course. Subsequent amendments are permitted “only by leave of court or by written consent of the adverse party.” The determination of the appropriateness of additional amended pleadings “is within the discretion” of the trial court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (dictum), cited in Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). The court is aware that the spirit of the rule is tolerant towards such amendments. Rule 15(a) states that “leave shall be freely given when justice so requires.” A trial court is obligated to act in this spirit, and may not deny such leave “without any justifying reason.” Foman v. Davis, supra. This does not mean, however, that the right to amend is absolute. “The requirement of judicial approval suggests that there are instances where leave should not be granted.” Klee v. Pittsburgh & W. Va. Rwy. Co., 22 F.R.D. 252, 255 (W.D.Pa.1958). Foman v. Davis states that leave is inappropriate where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” 371 U.S. at 182, 83 5. Ct. at 230. In Zenith v. Hazeltine Research, supra, the court stressed that in deciding a Rule 15(a) motion “the trial court was required to take into account any prejudice that Zenith would have suffered as a result.” 401 U.S." } ]

[ { "docid": "22167296", "title": "", "text": "of that discretion and inconsistent with the spirit of the Federal Rules. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). We have interpreted these factors to mean that “prejudice to the non-moving party is the touchstone for the denial of an amendment.” Cornell & Co. v. Occupational Safety & Health Review Comm’n, 573 F.2d 820, 823 (3d Cir.1978). In the absence of substantial or undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment. Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In denying Savin’s motion for leave to amend, the district court did not make any finding of prejudice, but instead based its decision on undue delay, previous failures to amend, and futility of amendment. The proposed amendment contains a long list of facts occurring in B & O’s history from 1961 to 1987. They include: B & O’s no-dividend policy from 1961 to 1978; B & O’s purchase of debentures at less than face value from 1974-77; the transfer of non-rail assets to MAC and declaration of the dividend in December 1977; the PTC/Guttmann litigation and the remedies awarded; alleged misrepresentation of the scope of the Hochwarth Stipulation during the course of that litigation; transfer of MAC’S assets to other CSX affiliates in 1983 to avoid participation in those assets by B & 0 minority security holders; the imposition of excessive costs on B & 0 in 1981-83 to defend civil and criminal anti-trust actions; and the attempted merger of B & 0 into C & 0 in 1986-87 to eliminate B & O’s minority shareholders. This proposed amendment was requested three years after the action was filed and nearly two years after the complaint was amended for the second time. Most of the facts were available to plaintiff Savin before she filed her original" }, { "docid": "13446282", "title": "", "text": "to file a Second Amended Complaint, alleging both undue delay and bad faith on the part of the United States in seeking to amend and prejudice to T & N if such amendment was allowed. In addition, T & N has moved to dismiss the First Amended Complaint on the ground that the United States has failed to allege facts in the First Amended Complaint sufficient to make T & N liable under any of the first four theories of liability. Finally, defendant T & N argues that the United States has failed to allege facts in the Second Amended Complaint sufficient to make T & N liable under the fifth theory of liability. III. United States’ Motion for Leave to File Second Amended Complaint It is well established that while the granting of a motion to amend a complaint is within the sound discretion of the district court, Lewis v. Curtis, 671 F.2d 779, 783 (3d Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982), the general rule is that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984). Indeed, the Supreme Court has directed that leave to amend should be freely given: [i]n 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 ... Foman v. Davis, 371 U.S. 178,182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). As the Third Circuit has held, “[djelay alone, however, is an insufficient ground to deny an amendment, unless the delay unduly prejudices the non-moving party.” Cornell & Co., Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820, 823 (3d Cir.1978). Rather, “the touchstone is whether the non-moving party will" }, { "docid": "23464794", "title": "", "text": "have noted that the courts “have shown a strong liberality ... in allowing amendments under Rule 15(a).” Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981) (quoting 3 J. Moore, Moore’s Federal Practice 1115.08(2) (2d ed. 1989)), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court identified a number of factors to be considered in deciding on a motion to amend under Rule 15(a): 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. at 230; accord, Heyl & Patterson Int’l, 663 F.d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm’n, 573 F.2d 820, 823 (3d Cir.1978). This Court has interpreted these factors to emphasize that “prejudice to the non-moving party is the touchstone for the denial of the amendment.” Cornell & Co., 573 F.2d at 823. But the non-moving party must do more than merely claim prejudice; “it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.” See Heyl & Patterson Int’l, 663 F.2d at 426 (citing Deakyne v. Comm’rs of Lewes, 416 F.2d 290, 300 (3d Cir.1969)). In the case at bar, the district court refused to grant the appellants’ motion to amend their complaint under Rule 15(a), holding that the “denial to the defendant of the defense of the statute of limitations constitutes prejudice to the defendant.” Bechtel v. Robinson, et al., 123 F.R.D. at 487 (citations omitted), reprinted in Appellants’ App. at 47. We find that the court erred in its holding since Gray should have been equitably estopped" }, { "docid": "18386001", "title": "", "text": "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.” 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); accord, Heyl & Patterson Intern., 663 F.2d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm'n., 573 F.2d 820, 823 (3d Cir.1978). The Third Circuit has interpreted these factors to emphasize that “prejudice to the non-moving party is the touchstone for the denial of an amendment.” Cornell & Co., 573 F.2d at 823; Heyl & Patterson Intern., 663 F.2d at 425. A party’s delay in moving to amend a pleading generally is an insufficient ground to deny an amendment, unless that delay unduly prejudices an opposing party. Cornell & Co., 573 F.2d at 823; Butcher & Singer, Inc. v. Kellam, 105 F.R.D. 450, 452 (D.Del.1984). See also 3 Moore’s Federal Practice 1115.-08[4], at 15-76 (2d ed. 1985) (“[Wjhile laches and unexcused delay may bar a proposed amendment, delay alone, regardless of its length, is not enough to bar it if the other party is not prejudiced.”). In addition, the non-moving party must do more than simply claim prejudice; it must show that it will be unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it otherwise could have offered had the amendment been timely. See Heyl & Patterson Intern., 663 F.2d at 426. Where substantial prejudice is not proven, a court may deny leave to amend only where the non-moving party shows bad faith, dilatory motive, truly undue or unexplained delay, futility, or repeated failure to cure deficiencies by amendment. Id. at 426. In accordance with these principles, the Court first must consider the extent to which granting plaintiffs’ motion will prejudice Equitable. As discussed above, Equitable claims several ways" }, { "docid": "18361116", "title": "", "text": "be freely given when justice so requires.” Id. The Supreme Court has provided guidance in interpreting Rule 15(a)’s standard: If the underlying facts or circumstances relied upon the 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 failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought, should, as the rules require, be ‘freely given.’ Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The Third Circuit has held that the “potential for undue prejudice [to the non-moving party] is ‘the touchstone for the denial of the leave to amend.’” Coventry v. United States Steel Corp., 856 F.2d 514, 519 (3d Cir.1988) (quoting Cornell & Co., Inc. v. Occupational Safety and Health Review Comm’n., 573 F.2d 820, 823 (3d Cir.1978)); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984) (same). This Court need not consider plaintiffs’ motions pursuant to Fed.R.Civ.P. 15(d) and 21 to serve supplemental pleadings and join new parties, because Rule 15(a) encompasses these amendments when the plaintiff is required, as here, to seek leave from the court. Motions to amend under Rule 15(a) may be filed to cure a defective pleading, to correct insufficiently stated claims, to amplify a previously alleged claim, to change the nature or theory of the case, to state additional claims, to increase the amount of damages sought, to elect different remedies, or to add, substitute or drop parties to the action. L. Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1474 (1990). See Goodman v. Mead Johnson & Co., 534 F.2d 566, 569 (3d Cir.1976) (district court improperly denied amendment to add claims and substitute parties), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Moreover," }, { "docid": "23111749", "title": "", "text": "party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be granted when justice so requires. The Johnsons had already amended their complaint as a matter of course to include claims against Harry Salwen as a Penn Eastern director. The grant of their motion to amend the pleadings to include the loss of the shopping center therefore rested within the discretion of the court. Indeed, the Johnsons admit that they must show an abuse of discretion on the part of the district court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Cornell & Co. v. OSHRC, 573 F.2d 820, 823 (3d Cir. 1978); 3 Moore’s Federal Practice H 15.08(4) (2d ed. 1979). Rule 15(a) itself provides that amendments should be “freely given when justice so requires.” The courts have taken a liberal approach to permitting amendments under Rule 15(a). In Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. at 230, the Court held: If the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims 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.” Accord, Cornell & Co., supra; Goodman v. Mead & Johnson Co., 534 F.2d 566 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Two grounds were asserted by the district court for the denial of plaintiffs’ motion to amend: (1) severe prejudice to the defendants, and (2) the possibility of trial delay. I find neither of these possibilities sufficiently significant to warrant denial of the motion to amend. I consider first the possibility of prejudice to the" }, { "docid": "22289226", "title": "", "text": "Inc. v. OSHRC, 519 F.2d 1257, 1262 (3d Cir. 1975). In general, the grant or denial of a motion for leave to amend, pursuant to Fed.R.Civ.P. 15(a), is within the sound discretion of the district court; it will be reversed only for an abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Canister Co. v. Leahy, 191 F.2d 255, 257 (3d Cir.), cert. denied, 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669 (1951). Rule 15(a) directs that leave to amend “shall be freely given when justice so requires.” In Foman the Supreme Court identified factors governing motions to amend under Rule 15(a): “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.’ ” 371 U.S. at. 182, 83 S.Ct. at 230. See Moore’s Federal Practice ¶ 15.08[4], at 897-900 (2d ed. 1974); 6 C. Wright & A. Miller, Federal Civil Procedure § 1487 (1971). Delay alone, however, is an insufficient ground to deny an amendment, unless the delay unduly prejudices the non-moving party. Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 n.19 (3d Cir. 1969); Mercantile Trust Company National Association v. Inland Marine Products Corp., 542 F.2d 1010,1012 (8th Cir. 1976); Moore 115.08[4], at 901; Wright & Miller § 1488, at 438. It is well-settled" }, { "docid": "21612520", "title": "", "text": "life of this lawsuit. Datascope’s contention that trying SMEC was tantamount to trying Schiff is not valid.” II. Two provisions of the Federal Rules of Civil Procedure govern the amendment of pleadings. Rule 15(a) provides, in pertinent part, that: ... a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Rule 21 provides in pertinent part: [pjarties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. The grant or denial of leave to amend the complaint is within the discretion of the district court, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971), and will be reversed only for an abuse of discretion. Cornell & Co. v. Occupational Safety and Health Review Comm’n, 573 F.2d 820, 823 (3rd Cir.1978). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court stated: 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. at 230. “In review of an order denying a motion to amend, a subject which is not unique to patent law, we look to the law of the regional circuit.” Kalman v. Berlyn Corp., 914 F.2d 1473, 1480, 16 USPQ2d 1093, 1098 (Fed.Cir.1990). Here we therefore look to the decisions of the Third Circuit to ascertain the standard for determining whether the district court abused its discretion in denying Datascope leave to amend. Although delay itself is an insufficient ground to deny amendment, if the delay is “undue” the district court" }, { "docid": "11412265", "title": "", "text": "pursuant to Rule 15(a) rests in the sound discretion of the trial judge. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). Trial judges are “... somewhat like quarterbacks in that they have a broad range of options for their game plan”. Heyl & Patterson International v. F.D. Rich Housing, 663 F.2d 419, 426 (3rd Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). Leave to amend is to be liberally granted. If the underlying facts or circumstances relied upon by a party may conceivably provide a basis for relief, they ought to be afforded the opportunity to test the claim on its merits. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The liberal policy favoring amendment is not without its limits, however. Leave to amend may be denied for any of several reasons. Undue prejudice is the foremost reason why leave to amend should not be granted. It is “the touchstone for the denial of leave to amend”. Cornell and Co., Inc. v. OSHRC, 573 F.2d 820, 823 (3rd Cir.1978). A party opposing leave to amend for this reason has a heavier burden than merely claiming prejudice. It must demonstrate that it would be unfairly disadvantaged or deprived of the opportunity to present evidence which it would have offered had the amendment been made in a timely manner. Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 n. 19 (3rd Cir.1969). Leave to amend also may be denied upon a showing of bad faith, dilatory motive, undue or unexplained delay, or repeated failure to cure deficiency in amendments previously allowed or futility of amendment. Foman, 371 U.S. at 182, 83 S.Ct. at 230. The trustee never formally requested leave to amend the complaint as outlined above. Rather, he merely informed the court and defendants at the beginning of trial what he “really” was claiming in Counts IV and VI. While we do not wish to encourage this practice, it is clear that leave to amend may be granted" }, { "docid": "5919648", "title": "", "text": "Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). As a matter of law, justice requires leave to amend when the moving party has “at least colorable grounds” for the proposed amendment. S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979). The Supreme Court has recognized that this freedom of amendment is limited when there is undue prejudice to the opposing party. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Alternatively, a motion to amend must be denied if there is “undue delay, bad faith or dilatory motive” on the part of the moving party. Foman, 371 U.S. at 182, 83 S.Ct. at 230. Mere delay, however, is an insufficient basis to deny a motion to amend absent a concomitant showing of undue prejudice or bad faith. See Madison Fund, Inc. v. Denison Mines Ltd., 90 F.R.D. 89, 92 (S.D.N.Y.1981); International Bank v. Price Waterhouse & Co., 85 F.R.D. 140, 142 (S.D.N.Y.1980). Of course, the grant or denial of leave to amend is ultimately within the sound judicial discretion of the district court. Foman, 371 U.S. at 182, 83 S.Ct. at 230. It is clear that the proposed third amended complaint contains no new factual allegations. Thus, this is not a situation where the proposed amendment alleges an entirely new set of operative facts. On the contrary, the proposed amended complaint merely adds a punitive damages claim against Lehman Brothers. Nevertheless, courts have consistently denied leave to amend to add a claim of punitive damages where the motion was filed after the close of discovery and would necessitate extensive discovery directed toward the willfulness of defendant’s conduct. See, e.g., Knapp v. Whitaker, 757 F.2d 827, 849 (7th Cir.), cert. denied, appeal dismissed, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985); Leroy v. Hartford Steam Boiler Inspection" }, { "docid": "19094806", "title": "", "text": "determination of appellants’ cross-motion is necessary. Whether leave to amend the complaint should be granted is within the sound discretion of the district court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). However, because of Rule 15(a)’s stricture that “leave shall be freely given when justice so requires,” refusal to allow an amendment must be based on a valid ground. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. at 330-31, 91 S.Ct. at 802 (undue prejudice to non-moving party); Denny v. Barber, 576 F.2d 465, 471 (2d Cir.1978) (sufficient opportunity to plead previously); Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir.1976) (per curiam) (undue delay); Vine v. Beneficial Finance Co., 374 F.2d 627, 637 (2d Cir.1967) (bad faith on the part of the moving party). That the amendments would not serve any purpose is a valid ground to deny a motion for leave to amend. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230; S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Development Fund Co., 608 F.2d 28, 42 (2d Cir.1979). As long as appellants have “at least colorable grounds for relief, justice does ... require” leave to amend. S.S. Silberblatt, Inc., 608 F.2d at 42. Because the district court found the original verified amended complaint deficient, it must carefully evaluate the proposed further amended complaint as a whole to determine if it alleges sufficient facts to meet the requirements of Rule 23.1. In re Penn Central Securities Litigation, 367 F.Supp. 1158, 1164 n. 2 (E.D.Pa.1973). When the district court considers the sufficiency of the proposed amended complaint, or any further amendments that it may permit for the purposes of satisfying Rule 23.1, it will have to reconsider appellants’ claim that ownership of a majority of shares by the alleged wrongdoer makes demand on the directors futile. We have yet to join those courts that have held that control of the directors by the alleged wrongdoer is grounds to excuse" }, { "docid": "23341269", "title": "", "text": "has repeatedly reminded that a trial court is required to take into account any prejudice to the opposing party which would result from allowing the amendment of the pleadings. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971) (substantial prejudice found); United States v. Hougham, 364 U.S. 310, 316-17, 81 S.Ct. 13, 17-18, 5 L.Ed.2d 8 (1960) (no prejudice found). The Court expounded on that and other considerations in Foman stating: 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.” 371 U.S. at 182, 83 S.Ct. at 230. An appeal from the denial of a motion to file an amended or supplemental pleading invokes an abuse of discretion standard of review. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. at 330, 91 S.Ct. at 802 (“It is settled that the grant of leave to amend the pleadings ... is within the discretion of the trial court”). Notably absent from the court’s opinion here, however, is any indication that the court was making a discretionary decision, in the sense that the court weighed considerations such as undue delay, prejudice to the opposing party and the like. Rather, the court rejected Intrepid’s motions based on its conclusions that the various supplemental and amended pleadings were either too early or too late, or proffered impermissible changes. However, a misinterpretation of the Rule itself would constitute an abuse of discretion. Kingsdown Medical Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876, 9 USPQ2d 1384, 1392 (Fed.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2068, 104" }, { "docid": "22438543", "title": "", "text": "91 S.Ct. 745, 802, 28 L.Ed.2d 77 (1971), and “[c]ourts have shown a strong liberality . . . in allowing amendments under Rule 15(a),” 3 Moore’s Federal Practice 115.08(2) at 15-59 (2d ed. 1980), (footnote omitted), which specifically states that leave to amend “shall be freely given when justice so requires.” In Foman v. Davis the Supreme Court observed: Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded. 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 an 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. Id. 371 U.S. at 182, 83 S.Ct. at 230. Accord, U.S. v. Hougham, 364 U.S. 310, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28 (2d Cir. 1979); Skehan v. Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979); Cornell and Company, Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820 (3d Cir. 1978); Thomas v. E. I. DuPont de Nemours & Co., 574 F.2d 1324 (5th Cir. 1978); Mertens v. Hummed, 587 F.2d 862 (7th Cir. 1978); Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977). The trial court’s discretion under Rule 15," }, { "docid": "13446283", "title": "", "text": "leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984). Indeed, the Supreme Court has directed that leave to amend should be freely given: [i]n 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 ... Foman v. Davis, 371 U.S. 178,182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). As the Third Circuit has held, “[djelay alone, however, is an insufficient ground to deny an amendment, unless the delay unduly prejudices the non-moving party.” Cornell & Co., Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820, 823 (3d Cir.1978). Rather, “the touchstone is whether the non-moving party will be prejudiced if the amendment is allowed.” Howze v. Jones & Laughlin Steel Corp., 750 F.2d at 1212. Thus, the Third Circuit, in Adams v. Gould, Inc., has provided the framework within which a district court addresses a motion for leave to amend a Complaint: The passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become ‘undue,’ placing an unwarranted burden on the court, or will become ‘prejudicial,’ placing an unfair burden on the opposing party. The question of undue delay, as well as the question of bad faith, requires that we focus on the plaintiffs’ motives for not amending their complaint to assert this claim earlier; the issue of prejudice requires that we focus on the effect on the defendants. 739 F.2d 858, 868 (3d Cir.1984), cert. denied, 469 U.S. 1122, 105 S.Ct. 806, 83 L.Ed.2d 799 (1985); see also J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 613-14 (3d Cir.1987). While we have, in the" }, { "docid": "18631243", "title": "", "text": "filed by March 3, 1980. Three weeks later, on February 29, 1980, plaintiff moved to amend. The motion was denied without prejudice for failure to comply with local court rules, and was renewed on March 25, 1980. A motion for leave to amend is committed to the sound discretion of the trial court. E. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 492 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). See generally, 3 Moore’s Federal Practice ¶ 15.08 (1980); 6 C. Wright & A. Miller, Federal Practice and Procedure Civil §§ 1484-1488 (1971 & Supp. 1980) [hereinafter cited as Wright & Miller]; An-not., 4 A.L.R.Fed. 123 (1970). Leave to amend “shall be given freely when justice so requires,” Fed.R.Civ.Pro. 15(a). In deciding such a motion, we are to consider factors like untimeliness, undue delay, bad faith, futility, and prejudice to adverse parties. See, e. g., Foman, 371 U.S. at 182, 83 S.Ct. at 230; Skehan, 590 F.2d at 492 (citing 3 Moore’s Federal Practice ¶ 15.08[4] at 91—94). In this case, the motion was filed almost three years after the complaint, and over one and one-half years after plaintiff’s counsel served his appearance. The motion therefore is untimely. The attempted amendment is not based on newly discovered information or any other recent event. Instead, it rests on information known to plaintiff and alleged in the original complaint. Compare Complaint with Motion to Amend, Exhibit “A” (Amended Complaint). Thus, the motion is not merely untimely, it is also delayed. See, e. g., Eisenmann v. Gould-National Batteries, Inc., 169 F.Supp. 862, 863-64 (E.D.Pa.1958) (motion filed 23 months after complaint, based on information known at time of complaint); Darcy v. North Atlantic & Gulf S.S. Co., 78 F.Supp. 662, 664 (E.D.Pa.1948) (motion filed 19 months after pleading, information known at time of pleading, no excuse for" }, { "docid": "18631242", "title": "", "text": "claim. III. MOTION FOR LEAVE TO AMEND Plaintiff now moves to amend his complaint. The new complaint would contain only one substantial difference — the addition of three new defendants: Charles Schock, a kitchen steward; Michael Scheer, a prison paramedic; and Mr. Patrizio, a prison-hospital employee. Plaintiff, without citation, argues that his Motion for Leave to File Amended Complaint [hereinafter cited as Motion to Amend] must be granted in order to litigate all issues between the parties. Defendants reply that the motion must be denied because it is delayed and would prejudice the new defendants because the statute of limitations has run. The events giving rise to the complaint occurred on February 4-6,1977. The pro se complaint was filed on June 7,1977. Counsel for plaintiff served his entry of appearance on July 24, 1978, and filed it on August 24,1978. On January 4,1980, the case was transferred to our docket. Shortly thereafter, a conference was held to determine the status of the case. Following the conference, we ordered that any motion for summary judgment be filed by March 3, 1980. Three weeks later, on February 29, 1980, plaintiff moved to amend. The motion was denied without prejudice for failure to comply with local court rules, and was renewed on March 25, 1980. A motion for leave to amend is committed to the sound discretion of the trial court. E. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 492 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). See generally, 3 Moore’s Federal Practice ¶ 15.08 (1980); 6 C. Wright & A. Miller, Federal Practice and Procedure Civil §§ 1484-1488 (1971 & Supp. 1980) [hereinafter cited as Wright & Miller]; An-not., 4 A.L.R.Fed. 123 (1970). Leave to amend “shall be given freely when justice so requires,” Fed.R.Civ.Pro. 15(a). In deciding such a motion, we are to" }, { "docid": "22167295", "title": "", "text": "leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” The Supreme Court has identified several factors to be considered when applying Rule 15(a): 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 an abuse of that discretion and inconsistent with the spirit of the Federal Rules. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). We have interpreted these factors to mean that “prejudice to the non-moving party is the touchstone for the denial of an amendment.” Cornell & Co. v. Occupational Safety & Health Review Comm’n, 573 F.2d 820, 823 (3d Cir.1978). In the absence of substantial or undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment. Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In denying Savin’s motion for leave to amend, the district court did not make any finding of prejudice, but instead based its decision on undue delay, previous failures to amend, and futility of amendment. The proposed amendment contains a long" }, { "docid": "22438544", "title": "", "text": "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. Id. 371 U.S. at 182, 83 S.Ct. at 230. Accord, U.S. v. Hougham, 364 U.S. 310, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28 (2d Cir. 1979); Skehan v. Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979); Cornell and Company, Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820 (3d Cir. 1978); Thomas v. E. I. DuPont de Nemours & Co., 574 F.2d 1324 (5th Cir. 1978); Mertens v. Hummed, 587 F.2d 862 (7th Cir. 1978); Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977). The trial court’s discretion under Rule 15, however, must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is “the touchstone for the denial of leave to amend.” Corned, 573 F.2d at 823. Accord, Foman 371 U.S. at 182, 83 S.Ct. at 230; Zenith Radio Corp., 401 U.S. at 330-31, 91 S.Ct. at 802; Skehan, 590 F.2d at 492. See also, 3 Moore’s Federal Practice, 1115.08[4] at 15-85 to 91. In the absence of substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment. Foman, 371 U.S. at 182, 83 S.Ct. at 230. See also, Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); Mertens v. Hummell, 587 F.2d 862 (7th Cir. 1978); Matlack, Inc. v. Hupp Corporation, 57 F.R.D. 151 (E.D.Pa.1973); 3 Moore’s Federal Practice K 15.08[4] at 15 — 91 to 100. The decision of the trial court to" }, { "docid": "18386000", "title": "", "text": "discovery. Having considered the parties’ arguments and the relevant authorities, the Court will grant plaintiffs’ motion for leave to amend their complaint. III. Discussion Leave to amend pleadings under Fed.R. Civ.P. 15(a) is at the discretion of the district court, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Courts “have shown a strong liberality ... in allowing amendments under Rule 15(a).” Heyl & Patterson Intern. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981), (quoting 3 Moore’s Federal Practice ¶ 15.08(2)), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In Foman, the Supreme Court identified a number of factors governing motions to amend under Rule 15(a): 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 un derlying 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.” 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); accord, Heyl & Patterson Intern., 663 F.2d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm'n., 573 F.2d 820, 823 (3d Cir.1978). The Third Circuit has interpreted these factors to emphasize that “prejudice to the non-moving party is the touchstone for the denial of an amendment.” Cornell & Co., 573 F.2d at 823; Heyl & Patterson Intern., 663 F.2d at 425. A party’s delay in moving to amend a pleading generally is an insufficient ground to deny an amendment, unless that delay unduly prejudices an opposing party. Cornell &" }, { "docid": "22438545", "title": "", "text": "however, must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is “the touchstone for the denial of leave to amend.” Corned, 573 F.2d at 823. Accord, Foman 371 U.S. at 182, 83 S.Ct. at 230; Zenith Radio Corp., 401 U.S. at 330-31, 91 S.Ct. at 802; Skehan, 590 F.2d at 492. See also, 3 Moore’s Federal Practice, 1115.08[4] at 15-85 to 91. In the absence of substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment. Foman, 371 U.S. at 182, 83 S.Ct. at 230. See also, Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); Mertens v. Hummell, 587 F.2d 862 (7th Cir. 1978); Matlack, Inc. v. Hupp Corporation, 57 F.R.D. 151 (E.D.Pa.1973); 3 Moore’s Federal Practice K 15.08[4] at 15 — 91 to 100. The decision of the trial court to grant or deny leave to amend is not subject to reversal except for abuse of discretion. Foman, 371 U.S. at 182, 83 S.Ct. at 230; Zenith Radio Corp. 401 U.S. at 330-31, 91 S.Ct. at 802; Cornell, 573 F.2d at 823; Canister Co. v. Leahy, 191 F.2d 255, 257 (3d Cir. 1951), cert. denied, 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669 (1951). Although formal motion for leave to amend was never made after the trial had begun, the trial court’s treatment of the Government’s opening statement on their defenses as further amendments to the pleadings does not constitute reversible error. The procedure for obtaining leave to amend pleadings set forth in Rule 8 of the Fed.R.Civ.P. should generally be heeded, but rigid adherence to formalities and technicalities must give way before the policies underlying Rule 15. “[T]he federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate" } ]

[ { "docid": "17771588", "title": "", "text": "language was not pervasive); see also Bell, 398 F.Supp.2d at 92 (holding that the sporadic use of abusive language is insufficient to establish a hostile work environment). Nor can the denial of important assignments and working late be characterized as sufficiently intimidating or offensive in an ordinary workplace context. See Bell, 398 F.Supp.2d at 92 (“Occasional instances of less favorable treatment involving ordinary daily workplace decisions are not sufficient to establish a hostile work environment.”). Furthermore, the alleged events are temporally diffuse, spread out over a four-year period, suggesting a lack of pervasiveness. See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir.1996) (holding that occurrence of alleged incidents intermittently over a seven-year period suggests the absence of a condition sufficiently “pervasive” to establish liability). As demonstrated by Johnson’s “exceeds expectation” evaluations, the alleged misconduct also has not interfered with his work performance. Second Am. Compl. ¶ 8. Johnson, in effect, seeks to transform his disparate pay issue into a hostile work environment claim by combining it with a series of ordinary workplace difficulties. But “mere reference to alleged disparate acts of discrimination against plaintiff cannot be transformed, without more, into a hostile work environment.” Childs-Pierce v. Utility Workers Union of America, 383 F.Supp.2d 60, 79 (D.D.C.2005), aff'd 187 Fed.Appx. 1 (D.C.Cir.2006). Assuming the truth of the alleged events and considering them in their totality, Johnson has fallen far short of alleging conduct that, under Harris and Oncale, amounts to “intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment.” Accordingly, the Court will grant the District’s motion to dismiss Johnson’s claim of hostile work environment in Count Nine. III. Retaliation Action taken against an employee in response to the employee’s opposition to a forbidden practice may constitute unlawful retaliation. To establish a claim for retaliation the plaintiff must show: “(1) that he engaged in a statutorily protected activity; (2) that the employer took adverse personnel action; and (3) a causal connection existed between the two.” Morgan v. Fed. Home Loan Mortgage Corp.," } ]

[ { "docid": "4774928", "title": "", "text": "hostile work environment claim based on his allegations that he was subjected to a host of workplace injustices, including denial of special pay and clinical privileges, heightened monitoring by supervisors, poor performance evaluations, denial of medical leave and failure to address insubordination by other employees); Hussain v. Gutierrez, 593 F.Supp.2d 1, 7 (D.D.C. 2008) (holding that the plaintiffs allega tions regarding the fact that her job responsibilities were continually changed and downgraded, and that she was asked to do tasks below her job title and asked to sit in the reception area did not support a hostile work environment claim); Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 54-55 (D.D.C.2004) (concluding that the plaintiffs allegations that her immediate supervisor froze her out of important meetings, humiliated her at those meetings she did attend, refused her request to be excused from a hearing and criticized her in an abusive manner did not amount to severe and pervasive treatment sufficient to alter the conditions of her employment); Richard v. Bell Atl. Corp., 209 F.Supp.2d 23, 35 (D.D.C.2002) (noting that the “the type of conduct that [the plaintiff] eomplain[ed] of, i.e., rude comments, unjust criticism, and stressful working conditions, amount to ‘ordinary tribulations of the workplace’ that [is] insufficient as a matter of law for a hostile [work] environment case”). Accordingly, the plaintiff has not raised a genuine issue of fact as to whether Ridgely fostered working conditions so severe or pervasive to give rise to an objectively hostile working environment. Moreover, the plaintiff has provided no evidence indicating any “linkage of correlation” between the allegedly harassing behavior and the claimed ground of discrimination or her participation in protected activity, see generally PL’s Opp’n; PL’s Decl., as required to sustain a hostile work environment claim, see Bryant, 265 F.Supp.2d at 63 (noting that absent such a linkage requirement, “the federal courts will become a court of personnel appeal”). The absence of such evidence warrants summary judgment to the employer on a hostile work environment claim. See Kline v. Springer, 602 F.Supp.2d 234, 243 (D.D.C.2009) (granting summary judgment to the defendant on a" }, { "docid": "16681051", "title": "", "text": "contention that she was subjected to conduct “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris, 510 U.S. at 21, 114 S.Ct. 367. The indignities that are described in the Amended Complaint — one confrontation with a coworker, unspecified “abuse” at meetings, and one threatening letter from a faculty member (about which nothing more is alleged)' — simply do not satisfy that standard. See, e.g., Leavitt, 407 F.3d at 408, 416-17 (statements by three employees over six-month period that plaintiff should “go back where she came from,” separate acts of yelling, and hostility did not rise to level of severity necessary to find hostile work environment)’; Badibanga v. Howard Univ. Hosp., 679 F.Supp.2d 99, 104 (D.D.C.2010) (dismissing hostile-work-environment claim where plaintiff was placed on administrative leave due to false accusation, his accent was criticized, he was told he was easy to replace with an American, and he was told that his supervisor would not hire other Africans). Even if the treatment to which Plaintiff was subjected could plausibly occasion a hostile-work-environment claim, moreover, she has offered no facts to support the contention that such alleged mistreatment was due to her membership in any protected class. Indeed, although McCaskill asserts that she was mistreated by her colleagues and her employer “because of her religious expression,” Opp. at 15, nothing supports that claim. All we learn from Plaintiffs Complaint is that Bienvenu asked her, “Are you still a member of that church?” Am. Compl., ¶ 13. In her Complaint, McCaskill also alleges that the harassment and discrimination was based in part upon her sexual orientation, “traditional marriage,” and “race, as an African American attending an African Methodist Episcopalian church.” Am. Compl., ¶ 25. Any mistreatment McCas-kill suffered, though, was not based upon her sexual orientation, her marital status, or her race. If the mistreatment occurred, it was based on her decision to sign a political petition. To the extent Plaintiff is arguing that she faced a hostile work environment on account of her political affiliation or her “right to participate in the political" }, { "docid": "2913554", "title": "", "text": "years after SSA Albrycht ceased being her supervisor. See, e.g., Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir.2000) (“Mean-spirited or derogatory behavior of which a plaintiff is unaware, and thus never experiences, is not ‘harassment’ of the plaintiff (severe, pervasive, or other).”); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir.2000) (explaining that hostile actions of which plaintiff is unaware are not relevant to hostile work environment claim); Dudley v. WMATA, 924 F.Supp.2d 141, 168 (D.D.C.2013) (same); Hutchinson v. Holder, 815 F.Supp.2d 303, 321 (D.D.C.2011) (same). Because conduct that the plaintiff does not perceive as abusive cannot alter the terms and conditions of her employment, conduct that the plaintiff did not know about cannot be used to establish that she was subjected to a hostile work environment. Hutchinson, 815 F.Supp.2d at 321. Finally, because the USCP removed SSA Albrycht from plaintiffs supervision and, ultimately found that he had discriminated against her, these intervening actions sever the earlier incidents from the more recent incident. In the end, based on all of the above reasons combined, the Court finds that the close-out performance evaluation is not re lated to the earlier alleged acts purported to constitute a hostile work environment. As such, because plaintiff has failed to identify an act contributing to the alleged gender-based hostile work environment that occurred after December 15, 2010, her claims are untimely and are dismissed. If the plaintiff believed SSA Albrycht subjected her to a gender-based hostile work environment while he supervised her, she needed to seek counseling at that time (she did, in fact, make such allegations to the Office of Professional Responsibility). She cannot now re-start the clock, three years after SSA Albrycht ceased being her supervisor, by claiming to have discovered an act, unrelated to SSA Albrycht’s direct supervision of her, that probably took place two years before she sought counseling and, of which, she was previously unaware. V. CONCLUSION For the foregoing reasons, the defendant’s motion to dismiss is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued. . Although these facts" }, { "docid": "4774926", "title": "", "text": "the plaintiff and her ability to perform her work, Ridgely created a working environment that was so hostile toward the plaintiff that she was unable to perform her duties. Pl.’s Opp’n at 25. She notes that due to the harassment she suffered, her psychological health deteriorated to the point that her physician recommended that she take an extended leave of absence. Id. at 23-24. The plaintiff, however, offers no response to the defendant’s argument concerning the absence of a link between the allegedly harassing behavior and her membership in a protected class or participation in protected activity. See id. at 22-25. As this court noted in its prior decision in this case, although the plaintiffs deteriorating psychological condition demonstrated that she was subjectively suffering emotional injuries, a plaintiff must also establish that the harassing behavior was sufficiently severe or pervasive from an objective standpoint to give rise to a hostile work environment. See Mem. Op. (Aug. 7, 2009) at 21; see also Harris, 510 U.S. at 21, 114 S.Ct. 367 (noting that “[cjonduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview”). The plaintiff bases her hostile work environment claim on a litany of allegedly harassing behavior perpetrated against her by Ridgely, such as the diminishment of her job responsibilities, public criticism of her job performance, the requirement that she communicate with Ridgely through e-mail only, alleged interference with the performance of her job duties, her exclusion from meetings, the imposition of unrealistic deadlines, the mishandling of a waiver request and an allegedly unwarranted criticism contained in her 2004 performance evaluation. See PL’s Opp’n at 23-24; PL’s Decl. ¶¶ 15-29. The plaintiff has provided no evidence that these instances of alleged mistreatment rose beyond the level of ordinary workplace conflicts, which are not sufficiently severe or pervasive to support a hostile work environment claim. See, e.g., Hussain v. Nicholson, 435 F.3d 359, 366-67 (D.C.Cir.2006) (concluding that the plaintiff physician did not make out a viable" }, { "docid": "14250558", "title": "", "text": "conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks omitted). “[Sjimple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 778, 118 S.Ct. 2275. Further, a plaintiff must demonstrate that the alleged events leading to the hostile work environment were connected, since “discrete acts constituting discrimination or retaliation claims ... are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult.” Lester, 290 F.Supp.2d at 33 (citing AMTRAK v. Morgan, 536 U.S. 101, 115-16, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). “Workplace conduct is not measured in isolation.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). For example, in George v. Leavitt, 407 F.3d 405 (D.C.Cir.2005), the D.C. Circuit held that statements by three employees over a six-month period telling a plaintiff to “go back where she came from,” separate acts of yelling and hostility, and allegations that the plaintiff was not given the type of work she deserved, were isolated instances that did not rise to the level of severity necessary to find a hostile work environment. Id. at 416-17. Similarly, in Singh v. United States House of Representatives, 300 F.Supp.2d 48, 54-57 (D.D.C.2004), this Court found that a plaintiffs allegations that her employer humiliated her at important meetings, screamed at her in one instance, told her to “shut up and sit down” in one instance, and was “constantly hostile and hypercritical” did not amount to a hostile work environment, even though these actions may have been disrespectful and unfair. The Amended Complaint alleges the following in support of Mr. Badibanga’s harassment claim: (1) the harassment included “receiving multiple disciplinary actions for things for which he was not responsible,” Am. Compl. ¶ 21; (2) Mr. Craig said that there were many Americans searching for a job and it would be easy to replace Mr. Badibanga, id. ¶ 58; and (3) in March 2008" }, { "docid": "985330", "title": "", "text": "Cir. 2011)). To prevail on such a claim, “a plaintiff must show that his employer subjected him to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Baird, 662 F.3d at 1250 (internal quotation marks omitted). Plaintiff has plausibly alleged that over the course of several years, her supervisors retaliated against her by consistently denying her access to certain high-level assignments to which she was allegedly entitled. Plaintiff also alleges that she was threatened with termination for complaining of retaliation; that she was unfairly forbidden from speaking with high-level government officials; and that she was unfairly targeted with negative performance reviews and warnings. Compl. ¶¶ 22, 36, 38, 56. On this basis, Plaintiff has plausibly alleged that persistent and severe retaliatory conduct changed the conditions of her employment—that is, she was relegated to low-level assignments—meaning that dismissal of her retaliatory hostile work environment claim is unwarranted. See, e.g., Dunbar v. Foxx, 246 F.Supp.3d 401, No. 13-CV-872 (TSC), 2017 WL 1208391, at *13 (D.D.C. Mar. 31, 2017) (allegations were sufficient to make out a claim of retaliatory hostile work environment due in part to the “reassignment of [plaintiffs] duties to other employees”); Winston v. Clough, 712 F.Supp.2d 1, 13 (D.D.C. 2010) (“Winston’s claim, construed in the light most favorable to him despite its sparse nature, sufficiently alleges facts that could be probative of a discriminatory hostile work environment by incorporating the purportedly discriminatory conduct that Winston experienced, and asserting that the discriminatory conduct constituted a hostile work environment.”). CONCLUSION AND ORDER For the foregoing reasons, Defendant’s [9] Motion to Dismiss in Part is DENIED. SO ORDERED. . The Court’s consideration has focused on the following documents: • Complaint, ECF No. 1 (\"Compl.”); • Mem. of P&A in Supp. of Def.'s Mot. to Dismiss in Part, ECF No. 9-1 (\"Def.'s Mem.”); • Pl.’s Mem. of P&A in Opp’n to Def.’s Mot. to Dismiss, ECF No. 10 (\"Opp’n Mem.”); • Reply in Supp. of Def.'s Mot. to Dismiss in Part, ECF No. 11 (\"Reply Mem.”). . For" }, { "docid": "2913553", "title": "", "text": "can sever earlier incidents from more recent incidents. See, e.g., Vickers v. Powell, 493 F.3d 186, 199 (D.C.Cir.2007). The Court finds that the close-out performance evaluation is not part of same actionable hostile work environment as the earlier claims. Thus, the plaintiffs gender-based hostile work environment claims are untimely, because the plaintiff has failed to identify an act contributing to the alleged hostile work environment that occurred after December 15, 2010. First, the close-out evaluation occurred remotely in time from the earlier acts. The earlier acts took place no later than July 23, 2008, but the close-out performance evaluation took place no earlier than October 2009 (and plaintiff suggests later), fifteen months later. Second, the close-out performance evaluation did not involve the same type of employment action that was involved in plaintiffs prior complaint. To the contrary, the plaintiff complains that the close-out performance evaluation was not as favorable as the “outstanding” performance evaluations she previously received in 2006 and 2007. Third, plaintiff was unaware of the close-out performance evaluation until June 2011, almost three years after SSA Albrycht ceased being her supervisor. See, e.g., Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir.2000) (“Mean-spirited or derogatory behavior of which a plaintiff is unaware, and thus never experiences, is not ‘harassment’ of the plaintiff (severe, pervasive, or other).”); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir.2000) (explaining that hostile actions of which plaintiff is unaware are not relevant to hostile work environment claim); Dudley v. WMATA, 924 F.Supp.2d 141, 168 (D.D.C.2013) (same); Hutchinson v. Holder, 815 F.Supp.2d 303, 321 (D.D.C.2011) (same). Because conduct that the plaintiff does not perceive as abusive cannot alter the terms and conditions of her employment, conduct that the plaintiff did not know about cannot be used to establish that she was subjected to a hostile work environment. Hutchinson, 815 F.Supp.2d at 321. Finally, because the USCP removed SSA Albrycht from plaintiffs supervision and, ultimately found that he had discriminated against her, these intervening actions sever the earlier incidents from the more recent incident. In the end, based on all" }, { "docid": "21595643", "title": "", "text": "properly ticket passengers who missed their stops. DRO’s Investigative Findings at 5 (confirmed by a witness). Even if Co-Worker 1 could have relayed his criticism in' a more polite manner, any embarrassment the plaintiff felt from his public criticism does not rise to the level of a hostile work environment. See Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (“Mon-duct must be extreme to amount to a change in the terms and conditions of employment”);- Rattigan v. Gonzales, 503 F.Supp.2d 56, 79 (D.D.C.2007) (finding that unrelated comments, threats and slights at work do not constitute hostile work environment and that “not everything that makes an employee unhappy is an actionable” under Title VII”). In addition, at the time when a supervisor reprimanded the plaintiff for creating an unsafe condition, followed by a meeting with three supervisors, on July 1Ó, 2009, none of the supervisors were aware of the plaintiffs sexual harassment charge. - Thus, the plaintiff has utterly failed to show that evidence regarding the plaintiffs poor job performance on the Road has any connection to her gender or her allegations of sexual harassment and, therefore, cannot support her hostile work environment claim. See Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119,1122-24 (D.C.Cir.2002) (affirming summary judgment for employer and rejecting sexual harassment claim where evidence showed that alleged harassment was “motivated by a workplace grudge, not sexual attraction”); Dudley v. Wash. Metro. Area Transit Auth., 924 F.Supp.2d 141, 171 (D.D.C. 2013) (“A litany of cases shows that simply having a rude, harsh, or unfair boss is not enough for a hostile work environment claim.”); Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 56 (D.D.C.2004) (“Criticisms of a subordinate’s work and expressions of disapproval (even loud expressions of disapproval) are the kinds of normal strains that can occur in any. office setting[.]”). The plaintiff also makes a hostile work environment claim covering her time working in the Yard, because her new supervisors repeatedly reprimanded her and closely observed her due to poor work performance, a male supervisor sent her home because she was unsafe, and she was transferred from" }, { "docid": "10677443", "title": "", "text": "that he was made to endure a hostile work environment. Although Ferriero is correct that a single “utterance of an epithet” does not constitute a hostile work environment, see Harris, 510 U.S. at 21-22, 114 S.Ct. 367; Hunter v. District of Columbia, 797 F.Supp.2d 86, 94 (D.D.C.2011); Deloatch v. Harris Teeter, Inc., 797 F.Supp.2d 48, 62 (D.D.C.2011), the racial slur was the beginning, not the sum total, of the episodes Wise claims constituted a hostile work environment. In addition to vague allegations concerning continuous harassment, he has identified myriad incidents ranging from threats of discipline based on false accusations to being singled out and excluded from trainings and award ceremonies and denied promotions. Although they took place over the course of a few years, Wise could provide evidence supporting these allegations sufficient for a reasonable jury to find that the purported harassment was both severe and pervasive. Cf. Holmes-Martin v. Leavitt, 569 F.Supp.2d 184, 193 (D.D.C.2008) (denying motion to dismiss hostile-work-environment claim because plaintiff “alleged some conduct in support of her claim” and noting that plaintiff must plead facts that “support,” not “establish,” that claim). Ferriero’s contention that Wise is simply “attempting] to use the hostile work environment theory to pursue discrimination and retaliation claims based upon discrete incidents,” Reply at 8, moreover, relies on a theory expressly rejected by the D.C. Circuit’s recent decision in Baird v. Gotbaum, 662 F.3d 1246 (D.C.Cir.2011). See Mot. at 22 (citing Baird v. Snowbarger, 744 F.Supp.2d 279 (D.D.C.2010), the very decision Baird v. Gotbaum vacated in relevant part). In that case, the court clarified that episodes that may well give rise to individual Title VII claims can also combine to form a hostile-work-environment claim: [W]e find no authority for the idea that particular acts cannot as a matter of law simultaneously support different types of Title VII claims, and of course, plaintiffs are free to plead alternative theories of harm that might stem from the same allegedly harmful conduct. Thus, although a plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard," }, { "docid": "985329", "title": "", "text": "is entitled to a certain class of assignments, and the complaint alleges that she was denied access to those assign ments as retaliation for her discrimination complaints. This suffices to plausibly allege a materially adverse action. Ultimately, it may be that, as in Jones, Plaintiff received a mix of assignments, each of which was within the ambit of her job responsibilities, and that she was merely dissatisfied with the legitimate work- allotments made by her supervisors. Which description is more apt, however, must be decided following discovery. See Mamantov v. Jackson, 898 F.Supp.2d 121, 129 (D.D.C. 2012) (“[D]is-covery is necessary before the Court could possibly assess the material adversity of the March 2010 reassignment. The Court must therefore deny the defendant’s motion to dismiss the plaintiffs retaliation claim.”). On largely the same basis, Plaintiff has also plausibly alleged that she was subject to a hostile work environment. “The D.C. Circuit has recognized the validity of retaliatory-hostile-work-environment claims.” Román v. Castro, 149 F.Supp.3d 157, 166 (D.D.C. 2016) (citing Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011)). To prevail on such a claim, “a plaintiff must show that his employer subjected him to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Baird, 662 F.3d at 1250 (internal quotation marks omitted). Plaintiff has plausibly alleged that over the course of several years, her supervisors retaliated against her by consistently denying her access to certain high-level assignments to which she was allegedly entitled. Plaintiff also alleges that she was threatened with termination for complaining of retaliation; that she was unfairly forbidden from speaking with high-level government officials; and that she was unfairly targeted with negative performance reviews and warnings. Compl. ¶¶ 22, 36, 38, 56. On this basis, Plaintiff has plausibly alleged that persistent and severe retaliatory conduct changed the conditions of her employment—that is, she was relegated to low-level assignments—meaning that dismissal of her retaliatory hostile work environment claim is unwarranted. See, e.g., Dunbar v. Foxx, 246 F.Supp.3d 401, No. 13-CV-872 (TSC), 2017 WL" }, { "docid": "19022821", "title": "", "text": "threw a notebook in her direction, none of the conduct that Brooks describes was physically threatening. Cf. Harris, 510 U.S. at 28, 114 S.Ct. 367. The meetings in which voices were raised at Brooks occurred two- and-a-half years apart, suggesting that they were “isolated incidents.” George, 407 F.3d at 416 (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). Moreover, courts have held that “[cjriticisms of ... work and expressions of disapproval (even loud expressions of disapproval)” are not sufficiently severe to constitute a hostile work environment. See Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 56 (D.D.C.2004). Much of the humiliation that Brooks experienced derived from her assignment to responsibilities that she considered to be beneath her qualifications, from negative performance evaluations, and from a four-month isolation on a “Team of One,” but “courts have generally rejected hostile work environment claims that are based on work-related actions by supervisors.” Grosdidier v. Chairman, Broad. Bd. of Governors, 774 F.Supp.2d 76, 110-11 (D.D.C.2011); see also Nurriddin v. Bolden, 674 F.Supp.2d 64, 94 (D.D.C.2009) (“[T]he removal of important assignments, lowered performance evaluations, and close scrutiny of assignments by management [cannot] be characterized as sufficiently intimidating or offensive in an ordinary workplace context.”). And although Brooks alleges that she and her work have been regularly disrespected, a Title VII “[p]laintiff must show far more than ... criticisms[ ] and snubs or perceived slights to establish a hostile work environment.” Rattigan v. Gonzales, 503 F.Supp.2d 56, 82 (D.D.C.2007). A hostile work environment claim must be evaluated on the “totality of the circumstances.” Baloch, 550 F.3d at 1201. Viewing the evidence in its totality and in the light most favorable to Brooks and drawing all reasonable inferences in her favor, as a court must on a motion for summary judgment, see Venetian Casino, 530 F.3d at 929, this Court concludes that no reasonable jury could find that Brooks has been subjected to a hostile work environment within the meaning of Title VII. Rather it is plain that she has been subjected to no more than the “ordinary tribulations of the workplace.” Faragher, 524 U.S." }, { "docid": "16681050", "title": "", "text": "Baird v. Gotbaum, 662 F.Sd 1246, 1251 (D.C.Cir.2011). McCaskill bases her theory on the following evidence: • “Bienvenu confronted Plaintiff in a very hostile manner about whether Plaintiff signed a Petition to place Proposition 6 ... on the ballot,” Am. Compl., ¶ 10; • Bienvenu exclaimed: “I am really disgusted with you!” and “criticized Plaintiffs Christian faith and belittled her religious beliefs,” id., ¶13; • Bienvenu “sternly reminded Plaintiff that the names and addresses of the people who signed the petition is a matter of public record,” id., ¶14, with “an aggressive demeanor, a hostile tone, a scowl on her face, and overly dramatic signing,” id., ¶15; • • “Plaintiff was further forced to endure[ ] verbal abuse, condescension, ■ and castigation ... during Faculty Senate meetings,” id., ¶57; and • “Plaintiff received [a] threatening letter from [a] faculty ... member” (possibly using a racial epithet, though that allegation appears for the first time in Plaintiffs Opposition), to which the university president “responded with ... hubris.” Id., ¶59. These allegations simply do not support Plaintiffs contention that she was subjected to conduct “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris, 510 U.S. at 21, 114 S.Ct. 367. The indignities that are described in the Amended Complaint — one confrontation with a coworker, unspecified “abuse” at meetings, and one threatening letter from a faculty member (about which nothing more is alleged)' — simply do not satisfy that standard. See, e.g., Leavitt, 407 F.3d at 408, 416-17 (statements by three employees over six-month period that plaintiff should “go back where she came from,” separate acts of yelling, and hostility did not rise to level of severity necessary to find hostile work environment)’; Badibanga v. Howard Univ. Hosp., 679 F.Supp.2d 99, 104 (D.D.C.2010) (dismissing hostile-work-environment claim where plaintiff was placed on administrative leave due to false accusation, his accent was criticized, he was told he was easy to replace with an American, and he was told that his supervisor would not hire other Africans). Even if the treatment to which Plaintiff was subjected" }, { "docid": "4774927", "title": "", "text": "not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview”). The plaintiff bases her hostile work environment claim on a litany of allegedly harassing behavior perpetrated against her by Ridgely, such as the diminishment of her job responsibilities, public criticism of her job performance, the requirement that she communicate with Ridgely through e-mail only, alleged interference with the performance of her job duties, her exclusion from meetings, the imposition of unrealistic deadlines, the mishandling of a waiver request and an allegedly unwarranted criticism contained in her 2004 performance evaluation. See PL’s Opp’n at 23-24; PL’s Decl. ¶¶ 15-29. The plaintiff has provided no evidence that these instances of alleged mistreatment rose beyond the level of ordinary workplace conflicts, which are not sufficiently severe or pervasive to support a hostile work environment claim. See, e.g., Hussain v. Nicholson, 435 F.3d 359, 366-67 (D.C.Cir.2006) (concluding that the plaintiff physician did not make out a viable hostile work environment claim based on his allegations that he was subjected to a host of workplace injustices, including denial of special pay and clinical privileges, heightened monitoring by supervisors, poor performance evaluations, denial of medical leave and failure to address insubordination by other employees); Hussain v. Gutierrez, 593 F.Supp.2d 1, 7 (D.D.C. 2008) (holding that the plaintiffs allega tions regarding the fact that her job responsibilities were continually changed and downgraded, and that she was asked to do tasks below her job title and asked to sit in the reception area did not support a hostile work environment claim); Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 54-55 (D.D.C.2004) (concluding that the plaintiffs allegations that her immediate supervisor froze her out of important meetings, humiliated her at those meetings she did attend, refused her request to be excused from a hearing and criticized her in an abusive manner did not amount to severe and pervasive treatment sufficient to alter the conditions of her employment); Richard v. Bell Atl. Corp., 209 F.Supp.2d 23, 35" }, { "docid": "17850827", "title": "", "text": "by the party opposing a motion for summary judgment must be accepted as true for the purpose of ruling on that motion, some statements are so conclusory as to come within an exception to that rule.”); see also Holmes-Martin v. Sebelius, 693 F.Supp.2d 141, 161 (D.D.C.2010); Ware v. Hyatt Corp., 80 F.Supp.3d 218, 228, 2015 WL 739857, at *8 (D.D.C.2015) (“[Regarding the name-calling, plaintiff does not attempt to date or quantify his general allegations that Olson called him ‘old man’ ‘frequently’ or ‘a lot of times,’ ” and “[i]t is plaintiffs duty, in opposing summary judgment, to establish more than ‘[t]he mere existence of a scintilla of evidence in support’ of his position.”) (quoting, Anderson, 477 U.S. at 252, 106 S.Ct. 2505). For another, while the connection between her disability status and some of these acts is clear — such as her Branch Chiefs attempting to communicate directly with her doctor — she does not bother to tie much of this conduct to her disabled status. She offers no evidence, for example, that her supervisor rummaged through her things, did not include commendations in her evaluations, or made unsubstantiated allegations of wrongdoing because of her protected status. See, e.g., Hussain v. Gutierrez, 593 F.Supp.2d 1, 7 (D.C.C.2008) (“Hussain fails to demonstrate that Run-dell’s yelling and screaming at her was based on her status as a member of a protected class.”); Badibanga v. Howard Univ. Hosp., 679 F.Supp.2d 99, 104 (D.D.C.2010) (“[T]he allegations that are unrelated to Mr. Badibanga’s race/ethnicity, such as his allegations that he was disciplined when others were not and that he was falsely accused of being rude, cannot support a claim for hostile work environment.”); Kelley v. Billington, 370 F.Supp.2d 151, 158 (D.D.C.2005) (same). She has failed, moreover, to demonstrate an adequate connection between these various incidents. See Baird I, 662 F.3d at 1251 (acts must be “adequately linked into a coherent hostile environment claim”). She has not stated who was involved, how frequently these incidents occurred, or how close in time they were. See id. (noting that incidents might be sufficiently related “if, for example, they" }, { "docid": "17850828", "title": "", "text": "rummaged through her things, did not include commendations in her evaluations, or made unsubstantiated allegations of wrongdoing because of her protected status. See, e.g., Hussain v. Gutierrez, 593 F.Supp.2d 1, 7 (D.C.C.2008) (“Hussain fails to demonstrate that Run-dell’s yelling and screaming at her was based on her status as a member of a protected class.”); Badibanga v. Howard Univ. Hosp., 679 F.Supp.2d 99, 104 (D.D.C.2010) (“[T]he allegations that are unrelated to Mr. Badibanga’s race/ethnicity, such as his allegations that he was disciplined when others were not and that he was falsely accused of being rude, cannot support a claim for hostile work environment.”); Kelley v. Billington, 370 F.Supp.2d 151, 158 (D.D.C.2005) (same). She has failed, moreover, to demonstrate an adequate connection between these various incidents. See Baird I, 662 F.3d at 1251 (acts must be “adequately linked into a coherent hostile environment claim”). She has not stated who was involved, how frequently these incidents occurred, or how close in time they were. See id. (noting that incidents might be sufficiently related “if, for example, they ‘involve[] the same type of employment actions, occur[ ] relatively frequently, and [are] perpetratéd by the same managers’ ”) (quoting Morgan, 536 U.S. at 120-21, 122 S.Ct. 2061); Baird v. Gotbaum (Baird II), 792 F.3d 166, 171 (D.C.Cir.2015) (finding plaintiff failed to allege hostile work environment where “[t]he intermittent spats identified in [her] complaints ... — spanning eight years and involving different people doing different things.in different contexts — have little to .do: with each other,” and plaintiff had “ma[de] no serious attempt to tie them together”). The Court concludes as a matter of law that these largely isolated incidents over the course of eight years do not amount to an abusive working environment. See Hussain v. Nicholson, 435 F.3d 359, 366-67 (D.C.Cir.2006) (plaintiff must show that employer “subjected [her] to ‘discriminatory intimidation, ridicule, and insult’ of such ‘severity] or pervasiveness] [as] to alter the conditions of [her] employment and create an abusive working environment’ ”) (quoting Harris, 510 U.S. at 21-22, 114 S.Ct. 367) (some alterations in original); see also Doha, Inc. v. Breiner," }, { "docid": "14250559", "title": "", "text": "separate acts of yelling and hostility, and allegations that the plaintiff was not given the type of work she deserved, were isolated instances that did not rise to the level of severity necessary to find a hostile work environment. Id. at 416-17. Similarly, in Singh v. United States House of Representatives, 300 F.Supp.2d 48, 54-57 (D.D.C.2004), this Court found that a plaintiffs allegations that her employer humiliated her at important meetings, screamed at her in one instance, told her to “shut up and sit down” in one instance, and was “constantly hostile and hypercritical” did not amount to a hostile work environment, even though these actions may have been disrespectful and unfair. The Amended Complaint alleges the following in support of Mr. Badibanga’s harassment claim: (1) the harassment included “receiving multiple disciplinary actions for things for which he was not responsible,” Am. Compl. ¶ 21; (2) Mr. Craig said that there were many Americans searching for a job and it would be easy to replace Mr. Badibanga, id. ¶ 58; and (3) in March 2008 he was placed on administrative leave due to a false accusation of misconduct, id. ¶ 22. In response to the Hospital’s motion to dismiss, Mr. Badibanga attempts to bolster the Amended Complaint via the submission of his own affidavit. See Pl.’s Opp’n [Dkt. # 15], Ex. 1 (Badibanga Aff.). Mr. Badibanga alleges in his Affidavit that: (1) in March of 2006, a nurse falsely told Ms. Mattia that Mr. Badibanga had been rude, thus causing a delay in patient care; (2) when he delayed a blood draw for one hour due to a staff shortage, supervisors issued a pre-termination hearing letter, and they did not do so when other workers similarly delayed; (3) Ms. Mattia told Mr. Badibanga that she was not going to hire any more African people; (4) when Mr. Badibanga was home ill, he was erroneously deemed to be on vacation; (5) when a doctor complained in September 2006 regarding a rude male employee, Ms. Mattia falsely assumed that the complaint was about Mr. Badibanga; and (6) Ms. Mattia criticized Mr. Badiban" }, { "docid": "21595639", "title": "", "text": "839 F.Supp.2d 284, 299 (D.D.C.2012). At the same time, “a ‘hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice.... A court’s task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice.’ ” Bergbauer v. Mabus, 934 F.Supp.2d 55, 70 (D.D.C.2013) (emphasis and ellipses in original) (quoting Morgan, 536 U.S. at 120, 122 S.Ct, 2061). Here, the plaintiff contends that Co-Worker l’s criticism of her work performance after July 5, 2009, stemmed from her rejection of his sexual advances and should be considered as part of the same actionable hostile work environment claim. PL’s July 9,2009, Email at 2. The Court need not resolve this argument, however.. Even considering all of Co-Worker l’s conduct together, the plaintiff still fails to make a sufficient showing that this conduct was sufficiently severe or pervasive as to’ create a hostile work environment. First, the incidents were isolated and infrequent occurrences — consisting of only four interactions that the plaintiff asserts were sexual in nature over the period of late 2008 or early 2009 through .July 4, 2009. Such a “few isolated incidents of offensive conduct, do not amount to actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002). Moreover, these interactions may have made the plaintiff uncomfortable but they were not so overt, constant and aggressive as to amount to severe or chronic abuse. See, e.g., Martinez v. P,R. Fed. Affairs Admin., 813 F.Supp.2d 84, 97 (D.D.C.2011) (finding numerous sexually inappropriate comments, heightened scrutiny, reassignment of job duties to othérs, creation of procedures that necessitated more contact not so pervasive, severe or abusive as to create a hostile work environment); Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97-98 (D.D.C.2007) (no hostile work environment where plaintiffs supervisor repeatedly touched plaintiff and made sexually suggestive comments); Coles v. Kelly Seros., Inc., 287 F.Supp.2d 25, 26-27, 31 (D.D.C.2003) (sending sexually explicit emails, mimicking sex, and after the plaintiff rejected sexual advances, making physically threatening gestees and swearing do not constitute hostile work environment)." }, { "docid": "5920123", "title": "", "text": "suggests, however, that plaintiff endured intimidation, ridicule, insult, or other behavior that was offensive, pervasive, severe, or abusive.” Id. Rather, the plaintiffs complaints relate primarily to the management style of her supervisors, and “such assertions cannot support a hostile work environment claim.” Id. (citing Allen v. Napolitano, 774 F.Supp.2d 186, 205-06 (D.D.C.2011)); see also Johnson v. Bolden, 699 F.Supp.2d 295, 302 (D.D.C.2010) (“[N]early all of plaintiffs allegations of a hostile work environment, even if taken as true, amount to nothing more than plaintiffs objections to the management style of [the supervisors in] his chain of command”). The plaintiffs claims that Spinale and Coquis criticized her work product, required her to submit daily work reports, denied her request to attend a training seminar, denied requests for leave unless she gave advance notice by phone or by email, and discontinued her work-issued cell phone all fall under this category. Moreover, there must be a “linkage between the hostile behavior and the plaintiffs membership in a protected class for a hostile work environment claim to proceed.” Douglas-Slade, 793 F.Supp.2d at 101 (citing Na’im v. Clinton, 626 F.Supp.2d 63, 73 (D.D.C.2009)). The plaintiff, however, fails to make any linkage. As discussed above, the only conduct in the record with overt racial overtones is the plaintiffs own emailing of racial jokes in May 2006, for which Coquis cautioned her. In addition, it is unlikely that Coquis would have discriminated against the plaintiff based on race, given his prior praise and support for her work. “Hostile work environment claims are not meant to set a general code for the workplace.” Id. at 101-102 (citation omitted). “Even an employee who reports discriminatory behavior is not immunized from those petty slights or minor annoyances that often take place at work and that all employees experience.” Id. at 101 (quoting Kelly v. Mills, 677 F.Supp.2d 206, 222 (D.D.C.2010)). The plaintiff “cannot convert ordinary tribulations of the workplace ... into an actionable hostile work environment claim.” Id. at 102. In sum, the factual allegations and evidence in the record here are insufficient to enable a reasonable jury to find that" }, { "docid": "5920122", "title": "", "text": "unlawful to `requir[e] people to work in a discriminatorily hostile or abusive environment.’\" Douglas-Slade v. LaHood, 793 F.Supp.2d 82, 100 (D.D.C. 2011) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). In order to prevail on a hostile work environment claim, a plaintiff must show that her workplace \"is permeated with `discriminatory intimidation, ridicule, and insult,’ that is `sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’\" Id. (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). \"To determine whether a hostile work environment exists, the court looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee’s work performance.\" Id. at 101 (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir. 2008)). \"Isolated incidents do not form a hostile work environment claim.\" Id. The plaintiffs relationship with her supervisors plainly deteriorated during the last several months of the plaintiffs employment. “Nothing in the record suggests, however, that plaintiff endured intimidation, ridicule, insult, or other behavior that was offensive, pervasive, severe, or abusive.” Id. Rather, the plaintiffs complaints relate primarily to the management style of her supervisors, and “such assertions cannot support a hostile work environment claim.” Id. (citing Allen v. Napolitano, 774 F.Supp.2d 186, 205-06 (D.D.C.2011)); see also Johnson v. Bolden, 699 F.Supp.2d 295, 302 (D.D.C.2010) (“[N]early all of plaintiffs allegations of a hostile work environment, even if taken as true, amount to nothing more than plaintiffs objections to the management style of [the supervisors in] his chain of command”). The plaintiffs claims that Spinale and Coquis criticized her work product, required her to submit daily work reports, denied her request to attend a training seminar, denied requests for leave unless she gave advance notice by phone or by email, and discontinued her work-issued cell phone all fall under this category. Moreover, there must be a “linkage between the hostile behavior and the plaintiffs membership in a protected class for a hostile work environment claim to proceed.” Douglas-Slade, 793" }, { "docid": "14250561", "title": "", "text": "ga’s foreign accent in front of coworkers on more than one occasion. See Badibanga Aff. ¶¶ 7-9,13,15, & 17. These allegations are insufficiently severe and pervasive to constitute an hostile work environment. While Mr. Badibanga may have been genuinely offended at the alleged comments — ’that he was easy to replace with an American, that Ms. Mattia would not hire other Africans, and criticism of his accent — these constitute isolated incidents that simply do not amount to a discriminatory change in the terms and conditions of employment. Faragher, 524 U.S. at 778, 118 S.Ct. 2275. As the Supreme Court has indicated, Title VII is not a civility code. Id.; see Harris, 510 U.S. at 21, 114 S.Ct. 367 (“ ‘[M]ere utterance of an ... epithet which engenders offensive feelings in an employee’ does not sufficiently affect the conditions of employment to implicate Title VII”) (quoting Meritor, 477 U.S. at 67, 106 S.Ct. 2399). Further, the allegations that are unrelated to Mr. Badibanga’s race/ethnicity, such as his allegations that he was disciplined when others were not and that he was falsely accused of being rude, cannot support a claim for hostile work environment. See, e.g., Kelley v. Billington, 370 F.Supp.2d 151, 157 (D.D.C.2005) (to sustain a hostile work environment claim, the plaintiff must show that he was discriminated against because of his status). Because the Amended Complaint fails to state a hostile work environment claim, the Hospital’s motion for partial dismissal will be granted and Count II will be dismissed. IV. CONCLUSION For the reasons stated above, Defendant’s motion for partial dismissal [Dkt. # 13] will be granted and Count II of the Amended Complaint will be dismissed. A memorializing Order accompanies this Memorandum Opinion." } ]

[ { "docid": "4043752", "title": "", "text": "if the challenged state law did not require the schools to be closed that day.” Id. at 621. While Metzl concluded that Illinois had failed its burden, it also recognized that we would have a different case if “Illinois had made a forthright official announcement that the public schools shall be closed on the Friday before Easter in order to give students and teachers a three-day spring weekend, rather than to commemorate the crucifixion of Jesus Christ_” Id. at 623. Although this comment can be labeled dictum in Metzl because Illinois had offered a substantially different justification, providing a spring holiday was the precise purpose in the other two appellate decisions addressing an Establishment Clause challenge to a Good Friday closing. These courts upheld the closing based on that secular purpose. See Cammack v. Waihee, 932 F.2d 765 (9th Cir.1991) (closing Hawaii public schools); Granzeier v. Middleton, 173 F.3d 568 (6th Cir.1999) (closing Kentucky county courts). In this case, like Hawaii and Kentucky but unlike Illinois, Indiana also justifies its Good Friday closing as accomplishing the secular purpose of providing a spring holiday. While there is no legislative history explaining the original reason for the Good Friday holiday — which would not be dis-positive anyway, Metzl, 57 F.3d at 621-Indiana has officially stated that it continues to recognize Good Friday as a legal holiday in order to provide a spring holiday to state employees during a time period in which there would be over four months without a holiday (between Martin Luther King, Jr.’s birthday, observed January 20, 1997, and Memorial Day, observed May 26, 1997). Indiana also presented evidence that it believes that it serves its interests as an employer to give generous holidays — including the Good Friday holiday — because holidays bolster employees’ efficiency and morale. Additionally, Indiana submitted evidence that Good Friday is a good Friday for a long weekend, not only because it falls during a vacation-vacant period, but also because over thirty percent of the schools in Indiana are closed on Good Friday, and because forty-four percent of employers in a nine-state region, including" } ]

[ { "docid": "17706993", "title": "", "text": "in their own religions; however, by doing so there is no insinuation that such a policy advances any religion over another. See Granzeier, 173 F.3d at 575-76 (finding that when school districts with a large Jewish population close school for Jewish holy days it does not result in the impermissible establishment of the Jewish religion but rather constitutes a secular recognition of the practicalities of school attendance). Koenick also argued that, by making the Friday before and the Monday after Easter a holiday, § 7-103 makes it easier for Christians to practice their faith than for others, thereby advancing Christianity. We disagree. The Supreme Court has stated repeatedly that a statute does not automatically violate the Establishment Clause simply because it confers an incidental benefit upon religion. See Lynch, 465 U.S. at 683, 104 S.Ct. 1355. Koenick is essentially arguing that followers of the Christian faith receive an incidental benefit because § 7-103 makes their observance of Good Friday easier, and disregarding the fact that all of the other students benefit equally from the four-day holiday. As stated by the Court, that is not enough to render § 7-103 invalid on grounds that it impermissibly advances religion. Because all Montgomery County students and teachers benefit equally from the four-day holiday and because the statute does not encourage or require students to attend religious services, we do not believe that § 7-103 runs afoul of the second prong of the Lemon test. 3. Finally, to satisfy the third prong of the Lemon test we must determine whether this statute leads to an “excessive government entanglement with religion.” Lemon, 403 U.S. at 613, 91 S.Ct. 2105. The Supreme Court has held that “[entanglement is a question of kind and degree,” Lynch, 465 U.S. at 684, 104 S.Ct. 1355, and because some interaction between church and state is inevitable, the Supreme Court has reaffirmed that the “[e]ntanglement must be 'excessive’ before it runs afoul of the Establishment Clause.” Agostini, 521 U.S. at 233, 117 S.Ct. 1997. In the past, the Supreme Court has found excessive entanglement in cases involving a state salary supplement" }, { "docid": "13130152", "title": "", "text": "in Chicago was advertising an opportunity to have your pet photographed with the Easter Bunny on Easter Sunday for $5. Good Friday, however, is not a secular holiday anywhere in the United States (with the possible exception of Hawaii, as we shall see). This is not merely our impression. It is the unanimous view of the theologians of diverse faiths who submitted affidavits in the district court. Christmas and Thanksgiving have accreted secular rituals, such as shopping, and eating turkey with cranberry sauce, that most Americans, regardless of their religious faith or lack thereof, participate in. Likewise with Easter egg hunts for children, not to mention photo sessions with the Easter Bunny. Good Friday has accreted no secular rituals. That should come as no surprise. Good Friday commemorates the execution of the Christian Messiah. Cf. American Civil Liberties Union v. City of St. Charles, supra, 794 F.2d at 271-73. It is a day of solemn religious observance, and nothing else, for believing Christians, and no one else. Unitarians, Jews, Muslims, Buddhists, atheists — there is nothing in Good Friday for them, as there is in the other holidays we have mentioned despite the Christian origin of those holidays. Illinois closes its schools on twelve holidays. Nine are purely secular. Two are religious in origin but secularized: Christmas and Thanksgiving. Only one of the holidays is a purely religious holiday, Good Friday, the holiday celebrated only by believing Christians. School districts are free to close their schools on the major holidays of other religions, but all public schools throughout the state are forced to close on Good Friday regardless of the preference of local school districts and no matter how small the number of students or teachers in a particular district who want to use the day for religious observances. The state has accorded special recognition to Christianity beyond anything that has been shown to be necessary to accommodate the religious needs of the Christian majority. The governor’s proclamation made clear that the purpose was to encourage Christian religious observances. That is the natural effect as well. The state law closing" }, { "docid": "21442106", "title": "", "text": "has not lost its theme of expressing thanks for Divine aid any more than has Christmas lost its religious significance.” Id. at 1360. Having found that Thanksgiving and Christmas were days of “religious significance,” the Court went on to find that the traditional public holidays falling on those days were not offensive to the First Amendment. Id. at 1360-61, 1378-79 (Brennan, dissenting). As noted above by the Court in Lynch, “the Government has long recognized—indeed it has subsidized— holidays with religious significance.” Lynch, 104 S.Ct. at 1361. Language from Justice Brennan’s dissenting opinion in Lynch is illuminating with respect to government’s ability to recognize the sanctity of a religious day within the boundaries prescribed by the First Amendment. Justice Brennan wrote that “although the government may not be compelled to do so by the Free Exercise Clause, it may, consistently with the Establishment Clause, act to accommodate to some extent the opportunities of individuals to practice their religion ... [Government does not violate the Establishment Clause when it simply chooses to ‘close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction.’ ” Lynch 104 S.Ct. at 1381 (Brennan, dissenting), citing Schempp, 83 S.Ct. at 1610-12 (Brennan, concurring), Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). Justice Brennan went on to opine that the foregoing principle justified “government’s decision to declare December 25th a public holiday.” Id. The similarity in the characters of Thanksgiving, Christmas, and Good Friday is clear. All three holidays are intertwined with the history of our nation. Indeed, Christmas and Good Friday have histories of their own which far exceed in their scope the history of this country; the two days mark the birth and death of Jesus Christ and have been observed for centuries. As this court has noted above, Good Friday, while religious in its origins, has, like Christmas, attained a partially secular character revolving around traditional Spring celebrations. Thus, this court concludes that Good Friday and Christmas stand on equal footing before the First Amendment. Christmas" }, { "docid": "11648687", "title": "", "text": "public holidays, along with other important days of secular and (in some eases) religious significance, diminishes the likelihood of an “endorsing” effect. Cf. Lynch, 465 U.S. at 710 n. 16, 104 S.Ct. at 1379 n. 16 (Brennan, J., dissenting) (“It is worth noting that Christmas shares the list of federal holidays with such patently secular, patriotic holidays as the Fourth of July, Memorial Day, Washington’s Birthday, Labor Day, and Veterans Day. We may reasonably infer from the distinctly secular character of the company that Christmas keeps on this list that it too is included for essentially secular reasons.”) (citation to federal statute omitted). Good Friday is surrounded by patriotic and historic dates which are all selected for their importance to the citizens of Hawaii. The government’s action might best be termed a mere “acknowledgment” of religion. See id. at 692-93, 104 S.Ct. at 1369-70 (O’Connor, J., concurring) (voting to uphold creche display against establishment clause challenge). Viewed in this context, it is unlikely that an observer would regard Good Friday’s inclusion as an endorsement of religion. Closing state offices on that day simply acknowledges Good Friday’s status as a holiday observed widely enough (and long enough) that the secular purpose of establishing a uniform day of rest is appropriately achieved by selecting it. If Hawaii went further toward celebrating the religious elements of Good Friday, such as erecting displays concerning the crucifixion of Jesus, then the absence of secular aspects to counterbalance the religious would probably render the display (not necessarily the holiday) unconstitutional under County of Allegheny. Christmas displays are prone to establishment clause challenges because they move far beyond a simple governmental accommodation of Christians’ desire to have a day to celebrate, and, without a sufficient secular context in which to place the display, cross the line into endorsement of the celebrating religion. Nothing in the display cases, however, provides support to the notion that the mere calendar recognition of such a holiday would have the effect of endorsing the religion. See, e.g., Lynch, 465 U.S. at 675-76, 104 S.Ct. at 1360-61 (describing nation’s long history of recognizing" }, { "docid": "21442107", "title": "", "text": "suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction.’ ” Lynch 104 S.Ct. at 1381 (Brennan, dissenting), citing Schempp, 83 S.Ct. at 1610-12 (Brennan, concurring), Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). Justice Brennan went on to opine that the foregoing principle justified “government’s decision to declare December 25th a public holiday.” Id. The similarity in the characters of Thanksgiving, Christmas, and Good Friday is clear. All three holidays are intertwined with the history of our nation. Indeed, Christmas and Good Friday have histories of their own which far exceed in their scope the history of this country; the two days mark the birth and death of Jesus Christ and have been observed for centuries. As this court has noted above, Good Friday, while religious in its origins, has, like Christmas, attained a partially secular character revolving around traditional Spring celebrations. Thus, this court concludes that Good Friday and Christmas stand on equal footing before the First Amendment. Christmas celebrates the birth of Christ, whereas Good Friday commemorates Christ’s crucifixion. Both Christmas and Good Friday have been traditionally celebrated and acknowledged as religious holy days by the Western world for many centuries. The partial secularization of the two holidays is somewhat parallel in that the days have come to signify the advent of seasonal commercial sales, an opportunity to relax with family, and the occasion to engage in traditional seasonal celebrations. Justice Brennan wrote that “[w]hen government decides to recognize Christmas Day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from pre-holiday activities. The Free Exercise Clause, of course, does not necessarily compel the government to provide this accommodation, but neither is the Establishment Clause offended by such a step. Lynch, 104 S.Ct. at 1379 (Brennan, dissenting). What Justice Brennan wrote about Christmas appears to this court to apply with" }, { "docid": "11648686", "title": "", "text": "program which benefits all). The paid leave is for the entire day and not only for the three hours associated with the traditional Christian observance of Good Friday. Compare Cammack, 673 F.Supp. at 1537 (no evidence in the record that public employers encourage church attendance or any other form of religious activity on Good Friday holiday) with Mandel, 54 Cal.App.3d at 612, 127 Cal.Rptr. at 254 (emphasizing limited closing period and explicit encouragement to worship in declaring an executive order closing state offices for a portion of Good Friday unconstitutional). Another factor in measuring the effect of a governmental action which might be construed as endorsement of religion is context. See County of Allegheny, 109 S.Ct. at 3103-04. In Lynch and County of Allegheny, the issue was how far the government could go toward participating in or endorsing the religious celebration of Christmas. In each case, the Court approved the actual display of religious icons (a creche and menorah, respectively) which were suitably balanced by secular displays. Good Friday’s mere placement on the roll of public holidays, along with other important days of secular and (in some eases) religious significance, diminishes the likelihood of an “endorsing” effect. Cf. Lynch, 465 U.S. at 710 n. 16, 104 S.Ct. at 1379 n. 16 (Brennan, J., dissenting) (“It is worth noting that Christmas shares the list of federal holidays with such patently secular, patriotic holidays as the Fourth of July, Memorial Day, Washington’s Birthday, Labor Day, and Veterans Day. We may reasonably infer from the distinctly secular character of the company that Christmas keeps on this list that it too is included for essentially secular reasons.”) (citation to federal statute omitted). Good Friday is surrounded by patriotic and historic dates which are all selected for their importance to the citizens of Hawaii. The government’s action might best be termed a mere “acknowledgment” of religion. See id. at 692-93, 104 S.Ct. at 1369-70 (O’Connor, J., concurring) (voting to uphold creche display against establishment clause challenge). Viewed in this context, it is unlikely that an observer would regard Good Friday’s inclusion as an endorsement of" }, { "docid": "17706986", "title": "", "text": "overruled its prior precedent). C. In Lemon, the Supreme Court created a three-part test for determining whether a state action violates the Establishment Clause. It required that the state action possess a secular purpose, that the action's primary effect was not the advancement of religion, and that it did not result in an excessive entanglement between church and state. See Lemon, 403 U.S. at 612-43, 91 S.Ct. 2105 (citation omitted). If a state action violates even one of these three prongs, that state action is unconstitutional. See North Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1147 (4th Cir.1991). Three other circuits have considered the question of whether the creation of a statutory holiday around Easter violates the Establishment Clause. In Cammack, the Ninth Circuit reasoned that since Good Friday has become secularized in Hawaii, the state could declare it a holiday without violating the Establishment Clause. 932 F.2d at 769. In Bridenbaugh, the Seventh Circuit examined an Indiana statute declaring Good Friday a paid holiday for state employees. 185 F.3d 796. After finding that Indiana presented several legitimate secular purposes for the holiday, none of which had the effect of advancing religion, the court ruled the Good Friday holiday statute constitutional. See id. at 798. Finally, in Granzeier, the Sixth Circuit found that a statute closing various courts and administrative offices on Good Friday was not unconstitutional because it was enacted for the legitimate, secular purpose of giving state and county employees the day off on a convenient and low traffic day. 173 F.3d at 574-76. 1. To be constitutional, a state action must have a \"clearly secular purpose.\" Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). It need not, however, be entirely secular, see id., but if there is no evidence of a legitimate, secular purpose, then the statute must fail. See Lynch, 465 U.S. at 690, 104 S.Ct. 1355. We are \"reluctan[t] to attribute unconsti tutional motives to the States, particularly when a plausible secular purpose for the State’s program may be discerned from the face of the" }, { "docid": "13130151", "title": "", "text": "the secular purposes that the law also serves or because the effect in promoting religion is too attenuated to worry about. The law may also be defensible as an accommodation of the rights of religious persons to the free exercise of their religion. But that is not a factor here, as we have already noted, since, wholly apart from the challenged law, public school students in Illinois who want to be excused from school on Good Friday for religious reasons are entitled to be excused without penalty save what is implicit in missing a day of school when school is in session. Some holidays that are religious, even sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their religious connotation in the eyes of the general public that government measures to promote them, as by making them holidays or even by having the government itself celebrate them, have only a trivial effect in promoting religion. Even Easter is becoming gradually secularized; in the week before this past Easter Sunday, a radio station in Chicago was advertising an opportunity to have your pet photographed with the Easter Bunny on Easter Sunday for $5. Good Friday, however, is not a secular holiday anywhere in the United States (with the possible exception of Hawaii, as we shall see). This is not merely our impression. It is the unanimous view of the theologians of diverse faiths who submitted affidavits in the district court. Christmas and Thanksgiving have accreted secular rituals, such as shopping, and eating turkey with cranberry sauce, that most Americans, regardless of their religious faith or lack thereof, participate in. Likewise with Easter egg hunts for children, not to mention photo sessions with the Easter Bunny. Good Friday has accreted no secular rituals. That should come as no surprise. Good Friday commemorates the execution of the Christian Messiah. Cf. American Civil Liberties Union v. City of St. Charles, supra, 794 F.2d at 271-73. It is a day of solemn religious observance, and nothing else, for believing Christians, and no one else. Unitarians, Jews, Muslims, Buddhists, atheists — there is" }, { "docid": "4043764", "title": "", "text": "a holiday on Good Friday. See Cohen v. City of Des Plaines, 8 F.3d 484, 491 (7th Cir.1993) (“For a law to have forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.”). Therefore, the Good Friday holiday also satisfies Lemon’s second prong. CONCLUSION Indiana has presented evidence of several secular purposes served by the Good Friday holiday, none of which have the principal effect of advancing religion. Thus, although it may be easier for some Christians to worship with the day off, that indirect effect does not violate the Establishment Clause. Therefore we hold that Section 1-1-9-1 of the Indiana Code is constitutional. Affirm. . Easter is celebrated on the first Sunday after the first full moon following the vernal equinox. However, because the Eastern and Western Christian Churches use different calendars — Western Churches use the Gregorian calendar, while Eastern Churches use the Julian calendar — and because in the Eastern Church Easter must follow the Jewish Passover, Christians around the world sometimes celebrate Easter on different dates. Indiana apparently ties the Good Friday holiday to the date of Easter celebrated by Christians descended from the Western Church. . The Governor designated Keith Beesley, an attorney for the State Personnel Department, as the State’s agent authorized to speak on its behalf in this litigation. . While statistics for Indiana alone (assuming they existed) may have been more persuasive, the statistics offered support Indiana’s position, especially when one considers that families often travel interstate on holiday weekends. .The dissent misapprehends Indiana’s factual burden here, concluding that Indiana had not \"fulfilled [its] burden of proof that if there was no Good Friday holiday, demands by employees for leave on that day would create a significant problem for state government.” Post at 803 (citing Metzl, 57 F.3d at 622). Indiana need not show that here because, unlike Illinois, Indiana has not justified its Good Friday closing as a response to higher absenteeism. Like Hawaii in Cammack and Kentucky in Granzeier, Indiana's secular justification is to provide a spring" }, { "docid": "4043772", "title": "", "text": "relies on a suggestion in Metzl that Had Illinois made a forthright official announcement that the public schools shall be closed on the Friday before Easter in order to give students and teachers a three-day spring weekend, rather than to commemorate the crucifixion of Jesus Christ, we might have a different case. Metzl, 57 F.3d at 623. “[M]ight have a different case” is scarcely a definitive ruling, and at best would be dictum. In any event, there is no “forthright official announcement” by Indiana. Some holidays that are religious, even sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their religious 'connotation in the eyes of the general public that government measures to promote them, as by making them holidays or even by having the government itself celebrate them, have only a trivial effect in promoting religion. Even Easter is becoming gradually secularized;.... Metzl, 57 F.3d at 620. See Lynch v. Donnelly, 465 U.S. 668, 681, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). The Supreme Court found a sufficient secular purpose in a state’s choice of Sunday as a required day of rest. McGowan v. Maryland, 366 U.S. 420, 452, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Good Friday, however, does not have the relevant attributes of Sundays, Christmas and Thanksgiving. It is a day of solemn religious observance, and nothing else, for believing Christians, and no one else. Unitarians, Jews, Muslims, Buddhists, atheists— there is nothing in Good Friday for them, as there is in the other holidays we have mentioned despite the Christian origins of those holidays. Metzl, 57 F.3d at 620. Even if, contrary to my view, the State’s evidence could support a finding that the State had a secular purpose in maintaining the Good Friday holiday, and that it did not advance the Christian religion, the character of Good Friday itself and the affidavit of a professor of theology negating secularization of Good Friday are conflicting evidence which would pose a genuine issue of fact, and the result should then have been to deny both cross motions for summary judgment, and proceed to" }, { "docid": "11648732", "title": "", "text": "782 n. 19. Yet it still notes that the average Hawaiian would view the inclusion of Good Friday as a holiday as no more of an establishment of religion than Christmas, id. at 781, relies on Thanksgiving and Christmas as religious holidays in its context section, id. at 780, and makes other analogies between Christmas and Good Friday as religious holidays. Id. at 780. Because I strongly disagree with the theory that Good Friday may be compared in its religious and secular makeup with Thanksgiving and Christmas, I add this section. First and foremost, I do not think that the Supreme Court agrees either. For example, “[a]s observed in this Nation, Christmas has a secular as well as a religious dimension.” County of Allegheny, 492 U.S. at 579, 109 S.Ct. at 3093 (footnote omitted). In fact, “[i]t has been suggested that the cultural aspect of Christmas in this country now exceeds the theological significance of the holiday.” Id. at n. 3. Justice O’Connor has noted, “[T]he celebration of Thanksgiving as a public holiday, despite its religious origins, is now generally understood as a celebration of patriotic values rather than particular religious beliefs.” Id. 492 U.S. at 631, 109 S.Ct. at 3121 (O’Connor, J., concurring). Justice O’Con-nor continued, “Christmas is a public holiday that has both religious and secular aspects ...” Id. 492 U.S. at 633, 109 S.Ct. at 3122 (O’Connor, J., • concurring). See also Lynch (Christmas “has very strong secular components and traditions.” Id. at 692, 104 S.Ct. at 1369 (O’Connor, J., concurring)). Though the Court has not mentioned Good Friday, it has spoken on Easter: “The Easter holiday celebrated by Christians may be accompanied by certain ‘secular aspects’ ... but it is nevertheless a religious holiday.” County of Allegheny, 492 U.S. at 633, 109 S.Ct. at 3122 (O’Connor, J., concurring). If Easter, the Easter Bunny notwithstanding, is still in essence a religious holiday, what does that say about Good Friday? Simply stated, Good Friday has no secular symbols or accompanying secular celebration. On one side of the holiday ledger we may place secular symbols: stockings, Santa Claus, elves," }, { "docid": "8741119", "title": "", "text": "denied, — U.S. -, 118 S.Ct. 1308, 140 L.Ed.2d 473 (1998). We believe that the observations of a reasonable observer are more germane to the effects analysis than to the secular purpose analysis. Accordingly, we follow our en banc precedent in Grand Rapids and consider the endorsement test a clarification of the second part of the Lemon test. Because Defendants concede that the sign posted by Neack in 1996 was unconstitutional, the sole substantive issue on appeal is whether closing state and county offices on Good Friday is unconstitutional. Two other circuits have considered this question. In Cammack v. Waihee, 932 F.2d 765 (9th Cir.1991), the Ninth Circuit found that Good Friday has become secularized in Hawaii and concluded that the state could declare it a holiday without violating the Establishment Clause. In Metzl v. Leininger, 57 F.3d 618 (7th Cir.1995), the Seventh Circuit held that an Illinois statute making Good Friday a school holiday was unconstitutional, although the court limited its holding to the particular facts and apparently invited the state to reform its practice by adopting a new rationale for the closing: Building on Cammack, Illinois might have argued that the contemporary purpose of the Good Friday public school closing law is to provide a long spring weekend.... [However, t]he argument is no more than hinted at in the state’s brief ..., perhaps because its premise— that Illinois, like Hawaii, wants to create a long spring weekend in all its public schools — is false. Had Illinois made a forthright official announcement that the public schools shall be closed on the Friday before Easter in order to give students and teachers a three-day spring weekend, rather than to commemorate the crucifixion of Jesus Christ, we might have a different case. [W]e have left open the possibility that Illinois can accomplish much the same thing ... by officially adopting a “spring weekend” rationale for the law, in place of the governor’s proclamation of a state religious holiday.... Id. at 622-24. These two cases suggest that holiday closings are suspect only if the purpose for which they are instituted is" }, { "docid": "17706992", "title": "", "text": "and teachers, not just followers of Christianity. By expressing no preference toward the practitioners of any one faith over any other, the four-day holiday around Easter does not endorse or advance a particular religion or religion generally. Section 7 — 103(c)(1)(iii) does not grant an added benefit to members of one faith that it does not grant to everyone, but rather treats all of the affected parties the same with respect to religion, and thereby does not impermissibly advance religion. Further, by simply giving students and teachers a school holiday around Easter, § 7-103 does not mention or imply that the holiday is to be spent attending religious services in recognition of this Christian holy day. The statute merely gives people the days off to spend as they like. Although the statute makes it possible for students and teachers to attend services around Easter, it in no way promotes or advances this cause. Similarly, the Board has a policy of granting students and teachers excused absences to attend religious services in recognition of holy days in their own religions; however, by doing so there is no insinuation that such a policy advances any religion over another. See Granzeier, 173 F.3d at 575-76 (finding that when school districts with a large Jewish population close school for Jewish holy days it does not result in the impermissible establishment of the Jewish religion but rather constitutes a secular recognition of the practicalities of school attendance). Koenick also argued that, by making the Friday before and the Monday after Easter a holiday, § 7-103 makes it easier for Christians to practice their faith than for others, thereby advancing Christianity. We disagree. The Supreme Court has stated repeatedly that a statute does not automatically violate the Establishment Clause simply because it confers an incidental benefit upon religion. See Lynch, 465 U.S. at 683, 104 S.Ct. 1355. Koenick is essentially arguing that followers of the Christian faith receive an incidental benefit because § 7-103 makes their observance of Good Friday easier, and disregarding the fact that all of the other students benefit equally from the four-day" }, { "docid": "4043765", "title": "", "text": "the world sometimes celebrate Easter on different dates. Indiana apparently ties the Good Friday holiday to the date of Easter celebrated by Christians descended from the Western Church. . The Governor designated Keith Beesley, an attorney for the State Personnel Department, as the State’s agent authorized to speak on its behalf in this litigation. . While statistics for Indiana alone (assuming they existed) may have been more persuasive, the statistics offered support Indiana’s position, especially when one considers that families often travel interstate on holiday weekends. .The dissent misapprehends Indiana’s factual burden here, concluding that Indiana had not \"fulfilled [its] burden of proof that if there was no Good Friday holiday, demands by employees for leave on that day would create a significant problem for state government.” Post at 803 (citing Metzl, 57 F.3d at 622). Indiana need not show that here because, unlike Illinois, Indiana has not justified its Good Friday closing as a response to higher absenteeism. Like Hawaii in Cammack and Kentucky in Granzeier, Indiana's secular justification is to provide a spring holiday. Thus, its burden is merely to show that it had a secular justification for choosing Good Friday for that holiday. It has met that burden. . It is a bit of a mystery (and will remain so) why in 1941 the Indiana legislature labeled Good Friday as a movable “feast.” In Christian terms, at least, that would certainly be a misnomer. The obvious movable feast, to which Good Friday is inextricably tied, is Easter, now largely secularized. FAIRCHILD, Circuit Judge, dissenting. With all respect, I conclude that the judgment appealed from should be reversed. I have no quarrel with the proposition that the State of Indiana is free to designate a holiday in March or April in order to provide a holiday for its employees partway through the four-month period between Martin Luther King, Jr. Day, in January, and Memorial Day, in May. Further, it is free to designate a Friday or Monday in order to extend a weekend to three days. Had it designated, for example, the first Friday in April, the fact" }, { "docid": "21442108", "title": "", "text": "celebrates the birth of Christ, whereas Good Friday commemorates Christ’s crucifixion. Both Christmas and Good Friday have been traditionally celebrated and acknowledged as religious holy days by the Western world for many centuries. The partial secularization of the two holidays is somewhat parallel in that the days have come to signify the advent of seasonal commercial sales, an opportunity to relax with family, and the occasion to engage in traditional seasonal celebrations. Justice Brennan wrote that “[w]hen government decides to recognize Christmas Day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from pre-holiday activities. The Free Exercise Clause, of course, does not necessarily compel the government to provide this accommodation, but neither is the Establishment Clause offended by such a step. Lynch, 104 S.Ct. at 1379 (Brennan, dissenting). What Justice Brennan wrote about Christmas appears to this court to apply with equal force to Good Friday. Each holiday provides Americans with a day off from work and neither holiday calls for the state’s administrative involvement in or supervision of the church’s affairs. Thus, the obvious similarities which exist between Thanksgiving, Christmas, and Good Friday insulate the Good Friday holiday from a successful First Amendment challenge. The Supreme Court’s holding that Thanksgiving and Christmas, while religiously significant, are nevertheless constitutionally inoffensive as public holidays, mandates that this court similarly find that the Good Friday holiday is constitutionally permissible. The McGowan decision counsels that traditional public holidays which are also religiously significant days may, through the passage of time, partially lose their sectarian nature and become constitutionally permissible, regardless of legislative intent in establishing those holidays. Good Friday in Hawaii, whatever, its intended purpose, has become a traditional and uniform day of rest and relaxation for the citizens of the State. Accordingly, the holiday does not offend either the United States Constitution or the Hawaii Constitution. V. Conclusion To summarize, this court finds that the primary purpose of" }, { "docid": "4043759", "title": "", "text": "Chanukah and Christmas with holiday displays, but such displays could not include a display that, unlike the one in Lynch, conveyed nothing but a religious message. Id. at 600-02, 109 S.Ct. 3086. The Court stated: “Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.” Id. at 601, 109 S.Ct. 3086. The reasoning of those cases applies with added force in this case because, as we note below, Indiana does not celebrate Good Friday at all; it merely gives its employees a paid holiday. Under the Court’s precedent Briden-baugh’s argument fails: the religious nature of Good Friday, without more, does not compel the conclusion that Indiana lacks a secular motive. If that were true, Lynch and Allegheny would have been decided differently. Of course, Indiana could not prevail if its secular justification was merely a sham. See Edwards v. Aguillard, 482 U.S. 578, 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.”). But nothing indicates that Indiana’s stated secular purpose is a sham, and in fact its rationale for the Good Friday holiday is consistent with its demonstrated practice of giving its employees long weekends around traditionally celebrated holidays. For instance, instead of celebrating Lincoln and Washington’s birthdays in February, Indiana has moved the legal holidays to the Friday after Thanksgiving, and the day before or after Christmas. Similarly, by giving its employees the day off on the Friday before Easter, employees benefit by having a three-day weekend during a time which typically involves travel, shopping, cooking, and family gatherings. While there may be few secular aspects surrounding Good Friday, there are many secular aspects to Easter — the Easter bunny, Easter baskets, jelly beans, dyed eggs, and Easter-egg hunts. Metzl, 57 F.3d at 620. And Indiana has intrinsically tied the Good Friday holiday to the now-secularized Easter holiday by making it a “movable feast day.” Just as Indiana is justified" }, { "docid": "4043771", "title": "", "text": "that the principal or primary effect of choosing Good Friday for the spring holiday neither advances nor inhibits religion. Almost by definition the choice of Good Friday advances the Christian religion (except, perhaps for those Christians who are adherents of the Eastern Church, whose tradition often puts Holy Friday on a different date). Those employees who do not observe Good Friday and who wish to take time off on a different day of religious observance must make a request and use a vacation, compensatory, or personal day or leave without pay. Thus their making that choice imposes a cost. There are circumstances under which the request may not be granted. The State’s choice of Good Friday fails this element of the Lemon test as well. “[T]he First Amendment does not allow a state to make it easier for adherents of one faith to practice their religion than for adherents of another faith to prac tice their religion unless there is a secular justification for the difference in treatment.” Metzl, 57 F.3d at 621. The majority relies on a suggestion in Metzl that Had Illinois made a forthright official announcement that the public schools shall be closed on the Friday before Easter in order to give students and teachers a three-day spring weekend, rather than to commemorate the crucifixion of Jesus Christ, we might have a different case. Metzl, 57 F.3d at 623. “[M]ight have a different case” is scarcely a definitive ruling, and at best would be dictum. In any event, there is no “forthright official announcement” by Indiana. Some holidays that are religious, even sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their religious 'connotation in the eyes of the general public that government measures to promote them, as by making them holidays or even by having the government itself celebrate them, have only a trivial effect in promoting religion. Even Easter is becoming gradually secularized;.... Metzl, 57 F.3d at 620. See Lynch v. Donnelly, 465 U.S. 668, 681, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). The Supreme Court found a sufficient secular purpose in" }, { "docid": "11648733", "title": "", "text": "religious origins, is now generally understood as a celebration of patriotic values rather than particular religious beliefs.” Id. 492 U.S. at 631, 109 S.Ct. at 3121 (O’Connor, J., concurring). Justice O’Con-nor continued, “Christmas is a public holiday that has both religious and secular aspects ...” Id. 492 U.S. at 633, 109 S.Ct. at 3122 (O’Connor, J., • concurring). See also Lynch (Christmas “has very strong secular components and traditions.” Id. at 692, 104 S.Ct. at 1369 (O’Connor, J., concurring)). Though the Court has not mentioned Good Friday, it has spoken on Easter: “The Easter holiday celebrated by Christians may be accompanied by certain ‘secular aspects’ ... but it is nevertheless a religious holiday.” County of Allegheny, 492 U.S. at 633, 109 S.Ct. at 3122 (O’Connor, J., concurring). If Easter, the Easter Bunny notwithstanding, is still in essence a religious holiday, what does that say about Good Friday? Simply stated, Good Friday has no secular symbols or accompanying secular celebration. On one side of the holiday ledger we may place secular symbols: stockings, Santa Claus, elves, reindeer, and pilgrims, Native American maize, turkey, and cranberry; on the other side we place religious symbols: creches, menorahs, palms, and crucifixes. While Good Friday is associated with the religious symbol- of Jesus Christ on the cross, it is, very much unlike Thanksgiving and Christmas, associated with no secular symbols at all. In fact, I think that we would insult observing Christians by characterizing Good Friday, a solemn day of worship and reflection on the death of Jesus Christ, as a day of convivial secular celebration. Easter, perhaps because it is a celebration of Jesus’ resurrection, does have some secular components such as egg hunts and chocolate bunnies, and may, in this fashion, begin to approach Thanksgiving and Christmas. Good Friday, bereft of secular symbols or joyous festivity, simply does not belong in the same category. Indeed, while the death of Jesus Christ dominates Good Friday, for many, the reigning images of Christmas are the secular Ghosts of Christmas Past, Present, and Yet to Come. Another telling example is that people of many religions or" }, { "docid": "11648688", "title": "", "text": "religion. Closing state offices on that day simply acknowledges Good Friday’s status as a holiday observed widely enough (and long enough) that the secular purpose of establishing a uniform day of rest is appropriately achieved by selecting it. If Hawaii went further toward celebrating the religious elements of Good Friday, such as erecting displays concerning the crucifixion of Jesus, then the absence of secular aspects to counterbalance the religious would probably render the display (not necessarily the holiday) unconstitutional under County of Allegheny. Christmas displays are prone to establishment clause challenges because they move far beyond a simple governmental accommodation of Christians’ desire to have a day to celebrate, and, without a sufficient secular context in which to place the display, cross the line into endorsement of the celebrating religion. Nothing in the display cases, however, provides support to the notion that the mere calendar recognition of such a holiday would have the effect of endorsing the religion. See, e.g., Lynch, 465 U.S. at 675-76, 104 S.Ct. at 1360-61 (describing nation’s long history of recognizing Christmas and Thanksgiving holidays); id. at 710, 104 S.Ct. at 1378-79 (Brennan, J., dissenting) (recognition of Christmas as a public holiday merely accommodates the calendar of public activities to the citizenry’s traditional Christmas observances). In fact, Hawaii’s acknowledgment of the holiday lacks any reference whatsoever to religion, unlike the President’s Thanksgiving Day proclamations. See id. at 675-76, 104 S.Ct. at 1360-61. The context of the Good Friday holiday, a minimal accommodation of the religious practices of some Hawaiians, decreases the likelihood of a public perception of endorsement. Because the primary effect of the Good Friday holiday is secular, we cannot conclude that the holiday is unconstitutional merely because the holiday may make it easier to worship on that day for those employees who may wish to do so. “[T]he 'Establishment' Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions.” McGowan, 366 U.S. at 442, 81 S.Ct. at 1113-14. Moreover “ ‘not every law that confers an" }, { "docid": "17707000", "title": "", "text": "our sister circuits, however, we believe that in the present context the two inquiries are best considered separately. See Bridenbaugh v. O'Bannon, 185 F.3d 796 (7th Cir.1999); Granzeier v. Middleton, 173 F.3d 568, 572-76 (6th Cir.1999). . We note that we find nothing in the record or otherwise that indicates that Easter, the holiest day in all of Christendom, is, as the district court concluded, \"a highly secularized holiday.” The anecdotal evidence in the record before us concerning the secularization of Easter proves nothing. Neither Koenick's reliance on the deeply religious aspects of Easter for practicing Christians nor the Board’s recitation of the many seemingly secular events surrounding the day evidence the level of secularization of the holiday. See Lynch v. Donnelly, 465 U.S. 668, 675, 685-86, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (Christmas does not have to lose its religious significance for believers in order to be considered a secular holiday); County of Allegheny v. ACLU, 492 U.S. 573, 633, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (O’Connor, J., concurring) (\"The Easter holiday celebrated by Christians may be accompanied by certain 'secular aspects’ such as Easter bunnies and Easter egg hunts; but it is nevertheless a religious holiday.”). What is necessary to prove Easter's secularization is evidence of the numbers of persons who observe the holiday in a purely secular way — that is, the number of persons for whom the holiday has no religious significance but who nonetheless celebrate the occasion in some manner. See, e.g., County of Allegheny, 492 U.S. at 585, 616-17, 109 S.Ct. 3086 (noting that many Americans have a Christmas tree in their home or otherwise celebrate Christmas or Chanukah “without regard to [their] religious significance”). This record is devoid of such evidence. Accordingly, unlike , the district court, we do not base our holding on a finding that Easter is a secular holiday." } ]